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SQE2 Written Day 2 (Probate & Property) Flashcards

Wills & Probate, and Property

1
Q

Property

What reasons should be given to a client who wants us to represent both them and the other party?

A

That it would be against our code of conduct
That we are attempting to get the best outcome for our client, hence this would give rise to a conflict.

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2
Q

Property

What is the extent of our advice on mortgages?

A

We can advise on types of mortgage, but not lenders or specific products.

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3
Q

Property

What are the key points to make with regard to interest only mortgages?

A

That you will still have to pay the full amount at the end of the product.
That they’re cheaper.
You will still need a means to pay at the end of the product.

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4
Q

Property

Tenants in common - can they hold in equal shares?

A

Yes

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5
Q

Property

Can one solicitor represent both parties when buying as tenants in common?

A

No, due to the conflict.

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6
Q

What is the degree of annexation test?

A

If something it physically attached by nails or screws, or will be damaged by removal, it’s a fixture.

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7
Q

What is the purpose of annexation test?

A

Whether the owner intended to make it a permanent part of the land eg a statue that is a focal point.

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8
Q

What is an easement?

A

A right to use another’s land, to the benefit of another piece of land.

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9
Q

If someone purchases a property and wasn’t given notice of other EQUITABLE interests in the property, are they binding?

A

No

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10
Q

If someone purchases a property and wasn’t given notice of other LEGAL interests in the property, are they binding?

A

Yes

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11
Q

What are the three types of notice that let a purchaser know that there exists an equitable interest, and that it will be binding?

A

Actual, constructive or Imputed

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12
Q

What are the three types of notice that let a purchaser know that there exists an equitable interest, and that it will be binding? ___________, constructive or Imputed

A

Actual

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13
Q

What are the three types of notice that let a purchaser know that there exists an equitable interest, and that it will be binding? Actual, ____________ or Imputed

A

Constructive

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14
Q

What are the three types of notice that let a purchaser know that there exists an equitable interest, and that it will be binding? Actual, constructive or __________.

A

Imputed

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15
Q

What constitutes ACTUAL notice of an equitable interest?

A

That the purchaser knows of the interest themselves.

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16
Q

What constitutes CONSTRUCTIVE notice of an equitable interest?

A

That the purchaser would have discovered the facts after reasonable enquiry.

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17
Q

What constitutes IMPUTED notice of an equitable interest?

A

That the purchaser was given notice by their agent.

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18
Q

When land is registered for the first time there are 4 things which will persist, what are they?

A

A lease of less than 7 years, a legal easement, a local land charge, interest belonging to person in actual occupation.

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19
Q

When land is registered for the first time there are 4 things which will persist, what are they? A lease of _____________, a legal easement, a local land charge, interest belonging to person in actual occupation.

A

Less than 7 years

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20
Q

When land is registered for the first time there are 4 things which will persist, what are they? A lease of less than 7 years, a legal ___________, a local land charge, interest belonging to person in actual occupation.

A

Easement

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21
Q

When land is registered for the first time there are 4 things which will persist, what are they? A lease of less than 7 years, a legal easement, a local ______________, interest belonging to person in actual occupation.

A

Land charge

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22
Q

When land is registered for the first time there are 4 things which will persist, what are they? A lease of less than 7years, a legal easement, a local land charge, interest belonging to person _________________.

A

In actual occupation

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23
Q

Within how long of a triggering even must land be registered?

A

2 months

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24
Q

What details are on the charges register?

A

Details of Encumbrances on the land such as legl easements and mortgages. Remember Encumbrances / Easements = ChargEs. C=E Claire Elizabeth!

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25
In a joint tenancy, how can one of the owners convert the interest to tenants in common - for example to sell their interest?
By giving the joint tenant notice in writing of a desire to sever, by treated their share as separate for example by contracting to sell it, by mutual agreement, by bankruptcy.
26
In a joint tenancy, how can one of the owners convert the interest to tenants in common - for example to sell their interest? By giving the joint tenant notice in writing of a desire to sever, by treating their share as separate for example by contracting to sell it, by _________________, by bankruptcy.
mutual agreement
27
What is the process required to take free of a beneficiary's interest in land?
By overreaching - paying an additional trustee.
28
In a TOLATA case, what factors are taken into account in deciding what should happen where there IS NO declaration of trust?
Intentions of person making the trust, purpose the property was for, welfare of any minor occupant.
29
In a TOLATA case, what factors are taken into account in deciding what should happen where there IS NO declaration of trust? Intentions of person making the trust, _______________ was for, welfare of any minor occupant.
purpose the property
30
Can a subtenant be held liable by the landlord?
No, as they are not in privity with the landlord.
31
A lease longer than which term must be created by deed?
3 years
32
What special conditions apply to a lease shorter than 3 years?
Doesn't need to be via deed, can simply be a written agreement, must be at market price rent without up front fees.
33
What special conditions apply to a lease shorter than 3 years? Doesn't need to be _________, can simply be a written agreement, must be at market price rent without up front fees.
via deed
34
What special conditions apply to a lease shorter than 3 years? Doesn't need to be via deed, can simply be a written agreement, must be at _________________ without up front fees.
market price rent
35
When might a license in fact be a lease, and the landlord is trying to get out of it?
If the tenant has exclusive possession, it's for a fixed or periodic term, and for consideration.
36
When might a license in fact be a lease, and the landlord is trying to get out of it? If the tenant has exclusive possession, it's for a fixed or periodic term, and for _____________.
consideration
37
What does the landlord have a statutory right to do, if a COMMERCIAL tenant fails to pay the agreed rent?
Take control of the tenants goods and sell them.
38
What is a qualified alterations covenant?
Prohibits a tenant making non structural alterations to leased promises without landlord's consent.
39
What can a Landlord do if a tenant breaches a covenant of repair?
They can claim damages, or check whether there is a self help clause (a Jervis + Harris clause) allowing them the right to enter and put right, if the tenant fails to comply with a notice to repair.
40
What is the test that should be applied if there is a qualified covenant against assignment of a lease?
The landlord may not unreasonably withhold consent.
41
After which year do tenants become released from their covenants upon assignment of a lease?
1995
42
What is the test for a prescription?
Benefit over someone's land without permission, for 20 years, without challenge or contribution.
43
What is an implied easement by necessity?
If the property is landlocked and needs access to a road.
44
Does an implied easement by necessity - such as access to a road - pass with a property?
If the easement is continuous and apparent, necessary, was being used by the seller at the time the land was sold.
45
Does an implied easement by necessity - such as access to a road - pass with a property? If the easement is ___________ and _____________, necessary, and was being used by the seller at the time the land was sold.
continuous and apparent
46
Does an implied easement by necessity - such as access to a road - pass with a property? If the easement is continuous and apparent, necessary, and was ____________________ at the time the land was sold.
being used by the seller
47
Generally, to whom are positive covenants binding?
Only the original contracting parties.
48
What is the test to enforce a negative / restrictive covenant?
The covenant must 'touch and concern' the land of the covenantee, that the parties intended for it to remain in effect, at the time made the covenantee held the legal estate, the covenantee's successor now hold's the legal estate.
49
What is the test to enforce a negative / restrictive covenant? The covenant must ________________ the land of the covenantee, that the parties intended for it to remain in effect, at the time made the covenantee held the legal estate, the covenantee's successor now hold's the legal estate.
'touch and concern'
50
What is the test to enforce a negative / restrictive covenant? The covenant must 'touch and concern' the land of the covenantee, that the parties intended for it ________________, at the time made the covenantee held the legal estate, the covenantee's successor now hold's the legal estate.
to remain in effect
51
How long is an Energy performance Certificate (EPC) Valid for?
10 years
52
What are defects in title?
Missing documents - make the seller's solicitor investigate.
53
What must the seller's solicitor ask the lender for to ensure the sale proceeds are sufficient?
An indicative redemption figure.
54
What should the property information form contain information about?
Disputes, Building work / alterations, notices, flooding, services crossing the property, utilities connected, occupiers.
55
What are the two types of defects, and which ones should be disclosed?
Patent and latent defects. Latent defects must be disclosed.
56
If a seller breaches duty of disclosure with regard to latent defects, what rights does the buyer have?
Withdraw after exchange, claiming damages.
57
On a lease contract, what else must the landlord supply in addition to the usual documents required on a sale?
Copy of building insurance, and last 3 years services charges.
58
Who holds the buyer's deposit as stakeholder?
The seller's solcitor.
59
What is a full title guarantee?
That the seller is entitled to sell the property, that they will do all in their power to transfer the title, and that it is free of all charges and encumbrances.
60
What is a full title guarantee? That the seller is entitled to sell the property, that they will do all in their power to ________________, and that it is free of all charges and encumbrances.
transfer the title
61
What is a full title guarantee? That the seller is entitled to sell the property, that they will do all in their power to transfer the title, and that it is free of all charges and _____________.
encumbrances
62
When will the completion date be, if no date is stipulated on the exchange of contracts, and by what time?
20 working days after exchange, by 2pm.
63
Which search should always be carried out?
A local search.
64
What does a local search look for?
Financial registrations against the property, Planning agreements, Tree preservation orders, Listed building status, Road adoption, public rights of way, Whether the property abuts common land or a village green.
65
What does a local search look for? Financial registrations against the property, ______________ agreements, Tree preservation orders, Listed building status, Road adoption, public rights of way, Whether the property abuts common land or a village green.
Planning
66
What does a local search look for? Financial registrations against the property, Planning agreements, Tree preservation orders, Listed building status, ___________ adoption, public rights of way, Whether the property abuts common land or a village green.
Road
67
What does a local search look for? Financial registrations against the property, Planning agreements, Tree preservation orders, Listed building status, Road adoption, public rights of way, Whether the property abuts _______________ or a __________________.
common land or a village green
68
Aside from a local search, what are the two other searches that the buyer's solicitor will always do?
Drainage and Water, Environmental
69
If the property is unregistered, what search will additionally take place?
Index map search
70
If the seller is a company, what other search will additionally take place?
Company search
71
If the buyer is obtaining a mortgage, what additional search does the buyer's solicitor do?
Bankruptcy search
72
What must the buyer's solicitor insist the buyer do before exchanges?
Visit the property to look for any patent defects and occupiers.
73
What does deemed permission cover in planning?
Small home extensions, adding a porch or conservatory, or putting up a fence
74
As well as carrying out mining operations, what are the two main strands of the Planning Act 1990 that a land owner needs permission to obtain? Make _________________ and making material changes of use.
structural changes
75
As well as carrying out mining operations, what are the two main strands of the Planning Act 1990 that a land owner needs permission to obtain? Make structural changes and making __________________ of use.
material changes
76
If deemed planning permission does not cover the plans, what type of application must be made for?
Express planning permission.
77
If planning permission is sought and approved, within how long must the work start?
3 years
78
If outline permission is obtained, within how long must the work start?
5 years (though full planning permission must be granted in the first 3)
79
Within how long must a notice of enforcement be served, in relation to a planning breach?
4 years
80
Within how long must a notice of enforcement be served, in relation to a material change of use?
10 years
81
Within how long must a notice of enforcement be served, in relation to a listed building?
Any length.
82
Within how long of a breach of building regulations must the local authority take enforcement action?
12 months
83
Where at least 12 months has passed in relation to a breach of building regulations, what can the local authority still do?
Seek an injunction requiring the owner to bring the building up to standards.
84
What can a buyer do to protect themselves from breach of planning laws or building regulations after the relevant enforcement period has passed?
Ask the seller to provide indemnity insurance.
85
Do commercial buildings require planning permission to change use?
Yes. Most commercial buildings fall into the same bracket, but there is a separate class for public buildings such as libraries, exhibition halls, churches and law courts, and another specifically for small shops selling essential goods.
86
What is the search that is performed prior to completion?
Search with priority.
87
How long does the pre-completion search with priority provide priority for?
30 working days.
88
Which exchange method is Formula A? (Think A is first - therefore 1 (solicitor))
Seller's solicitor holds both signed parts plus deposit cheque. Seller's solicitor confirms both same and inserts exchange and completion dates on both.
89
What exchange method is Formula B?
Both solicitors hold clients signed part. Both solicitors confirm over phone that versions are the same. Each then sends their signed part to the other.
90
What exchange method is Formula C?
Where there is a chain. Two calls, first to confirm everyone ready, then the second to confirm actual exchange.
91
If completion date is more than two weeks after exchange, what could the solicitor do to protect buyer's position?
Register the estate contract on the charges register.
92
What search must a solicitor do prior to completion for unregistered land?
full land charges search - provides a period of 15 working days.
93
When does a title actually change hands (completion) for registered and unregistered land?
Registered - when registered at HMLR, Unregistered - upon completion.
94
On completion which solicitor acts as agent - and what do they do?
The seller's solicitor. Date and execute the transfer.
95
Within how long should stamp duty be paid?
14 days
96
What remedy does the buyer have if information was incorrect after exchange?
Damages. Can only rescind if error was fraudulent, or if the buyer took the property it would be SUBSTANTIALLY DIFFERENT in quality or quality.
97
After which time on completion day can damages be claimed for delay?
2pm. After which they are treated as having completed the following day.
98
If there is a long delay, what can either innocent party do?
Service a notice complete. Only if ready, willing and able. Default party then has 10 days. Time becomes of the essence.
99
If after 10 days of time being of the essence, the property has still not completed, what options are there for the BUYER?
Rescind the contract, reclaim deposit with interest, claim damages to put in position had seller performed, seek specific performance.
100
If after 10 days of time being of the essence, the property has still not completed, what options are there for the BUYER? Rescind the contract, reclaim _________________, claim damages to put in position had seller performed, seek specific performance.
deposit with interest
101
If after 10 days of time being of the essence, the property has still not completed, what options are there for the BUYER? Rescind the contract, reclaim deposit with interest, claim damages to put in position had seller performed, seek _________________.
specific performance
102
If after 10 days of time being of the essence, the property has still not completed, what options are there for the SELLER?
Rescind contract, retain deposit, resell property, claim damages (limited to difference between contract price and price resold for).
103
If after 10 days of time being of the essence, the property has still not completed, what options are there for the SELLER? Rescind contract, retain deposit, ____________ property, claim damages (limited to difference between contract price and price resold for).
resell
104
If after 10 days of time being of the essence, the property has still not completed, what options are there for the SELLER? _______ contract, retain deposit, resell property, claim damages (limited to difference between contract price and price resold for).
Rescind
105
If after 10 days of time being of the essence, the property has still not completed, what options are there for the SELLER? Rescind contract, retain _______________, resell property, claim damages (limited to difference between contract price and price resold for).
deposit,
106
If after 10 days of time being of the essence, the property has still not completed, what options are there for the SELLER? Rescind contract, retain deposit, resell property, claim damages (limited to _____________________).
difference between contract price and price resold for
107
What is the name of the protection a commercial client has which gives them a right to remain in the property unless the landlord uses a statutory method to terminate the lease?
Security of tenure.
108
What must happen for the landlord and tenant to contract out of the security of tenure?
Serve a health warning at least 14 days prior, tenant signs declaration confirming agree to health warning, lease must reference the health warning, the tenant's declaration and the agreement to contract out.
109
What must happen for the landlord and tenant to contract out of the security of tenure? Serve a _________________ at least 14 days prior, tenant signs declaration confirming agree to health warning, lease must reference the health warning, the tenant's declaration and the agreement to contract out.
health warning
110
What must happen for the landlord and tenant to contract out of the security of tenure? Serve a health warning at least 14 days prior, tenant signs ______________ confirming agree to health warning, lease must reference the health warning, the tenant's declaration and the agreement to contract out.
declaration
111
What is a S25 notice?
Landlord seeking to terminate tenancy
112
What is a S26 notice
Tenant informing landlord of desire for new lease.
113
Between how many months must s25 and s26 notices be served?
6 and 12 months.
114
What are grounds for a s25 notice?
Tenant breach of obligation (repair, persistent delays in rent) [DISCRETIONARY], landlord requires whole building for subsequent letting [DISCRETIONARY], availability of suitable alternative accommodation, landlord intends to demolish or reconstruct premises, landlord intends to occupy the premises.
115
What are grounds for a s25 notice? Tenant breach of obligation (___________ or _________________) [DISCRETIONARY], landlord requires whole building for subsequent letting [DISCRETIONARY], availability of suitable alternative accommodation, landlord intends to demolish or reconstruct premises, landlord intends to occupy the premises.
repair or persistent delays in rent
116
What are grounds for a s25 notice? Tenant breach of obligation (repair, persistent delays in rent) [DISCRETIONARY], landlord requires _______________ for subsequent letting [DISCRETIONARY], availability of suitable alternative accommodation, landlord intends to demolish or reconstruct premises, landlord intends to occupy the premises.
whole building
117
What are grounds for a s25 notice? Tenant breach of obligation (repair, persistent delays in rent) [DISCRETIONARY], landlord requires whole building for subsequent letting [DISCRETIONARY], availability of __________________, landlord intends to demolish or reconstruct premises, landlord intends to occupy the premises.
suitable alternative accommodation
118
What are grounds for a s25 notice? Tenant breach of obligation (repair, persistent delays in rent) [DISCRETIONARY], landlord requires whole building for subsequent letting [DISCRETIONARY], availability of suitable alternative accommodation, landlord intends to demolish or _______________ premises, landlord intends to occupy the premises.
reconstruct
119
What are grounds for a s25 notice? Tenant breach of obligation (repair, persistent delays in rent) [DISCRETIONARY], landlord requires whole building for subsequent letting [DISCRETIONARY], availability of suitable alternative accommodation, landlord intends to demolish or reconstruct premises, landlord intends to ______________ the premises.
occupy
120
When receiving a s26 from tenant, how long does the landlord have to respond?
2 months.
121
If the landlord intends to rely on requiring whole premises (for either letting as whole, demolishing or occupying) what compensation is payable?
The rateable value of the property, and if occupier for over 14 years, DOUBLE the rateable value.
122
What is the maximum fixed term a court can order a lease to run for?
15 years.
123
Within how long should a trial take place in Fast Track?
30 weeks
124
Which track is correct for a claim of £12,000
Fast Track
125
Which track is correct for personal injury of £1000
Small claims
126
What is the starting amount of claim for multi track?
£25,000
127
What are the typical leasehold covenants?
Pay rent, enjoy quiet enjoyment, make repairs where needed.
128
Must assignment of lease be by deed?
Yes
129
What is surrender of a lease?
Where the parties agree the tenant will give up possession to the landlord.
130
What is a lease 'merger'?
Where parties agree the landlord will transfer the reversion to the tenant.
131
What is a break clause in a lease?
An optional clause allowing the parties to terminate early.
132
What happens to the sublease, when the head-lease is brought to an end by expiry, notice to quit or forfeiture?
It also ends
133
What happens to the sublease, when the head-lease is brought to an end by surrender or merge?
The sublease continues under the new arrangement.
134
What are the three main factors to consider in boundary disputes?
To encourage a negotiated settlement to avoid litigation, declaration of property disputes can affect a sale, adverse possession - land registry may award title if there's a reasonable mistake as to boundaries.
135
What are the three main factors to consider in boundary disputes? To encourage a negotiated settlement to ____________________, declaration of property disputes can affect a sale, adverse possession - land registry may award title if there's a reasonable mistake as to boundaries.
avoid litigation
136
What are the three main factors to consider in boundary disputes? To encourage a negotiated settlement to avoid litigation, declaration of property disputes __________________, adverse possession - land registry may award title if there's a reasonable mistake as to boundaries.
can affect a sale
137
What are the three main factors to consider in boundary disputes? To encourage a negotiated settlement to avoid litigation, declaration of property disputes can affect a sale, adverse possession - land registry may award title if there's a _____________________________.
reasonable mistake as to boundaries
138
Standard wording used to draft a special condition
139
Standard wording used to insert provision for easement / covenant
140
Standard wording used for shares of co-owners
141
Transfer of land - what do we need to do with regard to the date?
Leave it blank.
142
Transfer of land - where the names don't match due to being married etc, what should be done?
Add a copy of the marriage certificate
143
Transfer of land - what should be done when purchasing a property held on trust?
Add details of a second trustee to ensure that the rights of any beneficiaries are overreached.
144
Transfer of land - who is the transferor and who is the transferee?
Property moves from the transferor (seller) to the transferee (buyer)
145
Transfer of land - which address should be used when drafting, in residential, for the transferee?
The NEW address they're moving to.
146
Transfer of land - which address should be used when drafting, in commercial?
The office address
147
Transfer of land - when drafting - which address should be used when purchasing a second home?
The main / primary address.
148
Transfer of land - drafting - should chattels be included in the purchase price?
No.
149
Transfer of land - Drafting - Declaration of trust. The wording asks whether the property should be held on trust for themselves as joint tenants, tenants in common or merely on trust. What should be written if it is a solo purchase?
Nothing, leave it blank.
150
Transfer of land - Drafting - what should be included in the section for additional provisions?
Any covenants.
151
Transfer of land - Drafting - as this is by deed, what additional requirements are required to execute the deed?
Full name of all transferors In the presence of witnesses This should include all transferees if the property is being purchased in multiple names
152
Transfer of PART of land - Drafting - what should be included that shows which part of land is being transferred?
The index map with the land highlighted in red.
153
Transfer of PART of land - Drafting - what colour is the land being retained usually edged in?
Blue
154
Transfer of PART of land - Drafting - will covenants of burden or benefit automatically pass on to the successors in title?
No, this would need to be stipulated.
155
Transfer of PART of land - Drafting - What is the effect of failing to stipulate covenants of part of land being transferred?
They won't pass with the property.
156
Transfer of PART of land - Drafting - What terms should be used for the land's benefit and burden of another?
Dominant and Servient land.
157
Transfer of PART of land - Drafting - What should be considered when rights of way would be changed to facilitate the transfer?
Just on foot, or vehicles? Commercial vehicles allowed? Certain time of day? Maintenance agreements? Access to the other property for maintenance?
158
Transfer of PART of land - Drafting - What factors should be considered when dealing with fences being added?
Height, and material.
159
Transfer of PART of land - Drafting - If there is to be a gate on the land, why would a covenant to keep it locked at all times be ineffective?
Because then nobody could ever go through it.
160
Wills - Drafting - Usual structure? [9 items]
Opening words (details of testator) Revocation clause Appointment of executors and trustees [Appointment of guardians for minor children] Non residuary gifts ie legacies / items Residue, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age Admin clause giving PRs + Trustees powers Attestation clause Signature of testator and witnesses
161
Wills - Drafting - Usual structure? [9 items] Opening words (???????????????) Revocation clause Appointment of executors and trustees [Appointment of guardians for minor children] Non residuary gifts ie legacies / items Residue, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age Admin clause giving PRs + Trustees powers Attestation clause Signature of testator and witnesses
details of testator
162
Wills - Drafting - Usual structure? [9 items] Opening words (details of testator) ????????? Appointment of executors and trustees [Appointment of guardians for minor children] Non residuary gifts ie legacies / items Residue, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age Admin clause giving PRs + Trustees powers Attestation clause Signature of testator and witnesses
Revocation clause
163
Wills - Drafting - Usual structure? [9 items] Opening words (details of testator) Revocation clause ??????????????? [Appointment of guardians for minor children] Non residuary gifts ie legacies / items Residue, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age Admin clause giving PRs + Trustees powers Attestation clause Signature of testator and witnesses
Appointment of executors and trustees
164
Wills - Drafting - Usual structure? [9 items] Opening words (details of testator) Revocation clause Appointment of executors and trustees [?????????????????????] Non residuary gifts ie legacies / items Residue, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age Admin clause giving PRs + Trustees powers Attestation clause Signature of testator and witnesses
Appointment of guardians for minor children
165
Wills - Drafting - Usual structure? [9 items] Opening words (details of testator) Revocation clause Appointment of executors and trustees [Appointment of guardians for minor children] ????????????????????? Residue, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age Admin clause giving PRs + Trustees powers Attestation clause Signature of testator and witnesses
Non residuary gifts ie legacies / items
166
Wills - Drafting - Usual structure? [9 items] Opening words (details of testator) Revocation clause Appointment of executors and trustees [Appointment of guardians for minor children] Non residuary gifts ie legacies / items ????????????, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age Admin clause giving PRs + Trustees powers Attestation clause Signature of testator and witnesses
Residue
167
Wills - Drafting - Usual structure? [9 items] Opening words (details of testator) Revocation clause Appointment of executors and trustees [Appointment of guardians for minor children] Non residuary gifts ie legacies / items Residue, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age ???????????????????????? Attestation clause Signature of testator and witnesses
Admin clause giving PRs + Trustees powers
168
Wills - Drafting - Usual structure? [9 items] Opening words (details of testator) Revocation clause Appointment of executors and trustees [Appointment of guardians for minor children] Non residuary gifts ie legacies / items Residue, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age Admin clause giving PRs + Trustees powers ???????????????????? Signature of testator and witnesses
Attestation clause
169
Wills - Drafting - Usual structure? [9 items] Opening words (details of testator) Revocation clause Appointment of executors and trustees [Appointment of guardians for minor children] Non residuary gifts ie legacies / items Residue, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age Admin clause giving PRs + Trustees powers Attestation clause ??????????????????????
Signature of testator and witnesses
170
Wills - Drafting - Example of opening words?
This is the last will and testament of me John Smith of 1 High Street, London, made on 01.01.01.
171
Wills - Drafting - Example revocation clause
I revoke all former wills and testamentary dispositions made by me.
172
Wills - Drafting - Appointment of executors?
I appoint David Smith of 2 High Street London, and Ian Smith of 3 High Street London to be my executors.
173
Wills - Drafting - Appointment of executors and trustees?
I appoint David Smith of 2 High Street London, and Ian Smith of 3 High Street London (in my will called “My Trustees”) to be my executors and trustees.
174
Wills - Drafting - Example appointment of guardian to children?
If my wife dies before my I appoint Jane Smith of 4 High Street London and Mary Smith of 5 High Street London to be the guardians of my children who are under 18.
175
Wills - Drafting - What is a pecuniary legacy?
A specific gift of cash
176
Wills - Drafting - Standard gift of cash?
I GIVE to Bob Smith of 6 High Street, London [provided he survives me by 28 days] the sum of £1000 [free of tax]
177
Wills - Drafting - why are the words 'provided he survives me by 28 days' included?
To prevent unnecessary costs in administering both estates in a short space of time.
178
Wills - Drafting - How should a gift to charity be worded?
I give to Royal National Institute for the Blind (“the Charity”) for its general charitable purposes the sum of £5000. If at my death the charity has ceased to exist or has amalgamated with another charity or has changed its name my Trustees shall pay it to the charitable organisation which they consider most nearly fulfils the objects of the Charity. The receipt of a person who appears to be a proper officer of the Charity or any substituted charity shall be a sufficient discharge to my Trustees.
179
Wills - Drafting - How should a specific legacy for an engagement ring be worded?
I GIVE to Sally Smith of 7 High Street, London [provided she survives me by 28 days] [my engagement ring]
180
Wills - Drafting - How should a gift of chattels be worded?
I GIVE to Sally Smith of 7 High Street, London [provided she survives me by 28 days] my personal chattels as defined by Administration of Estates Act 1925 [s/55(1)(x)] [except those which are the subject of specific gifts in this my will]
181
Wills - Drafting - How should the residuary be worded?
I GIVE all my estate not otherwise disposed of to [Person / People in equal shares] absolutely.
182
Wills - Drafting - How should a substitution clause for the residuary be worded?
If [Person] predeceases me, I give my share of the residuary to [New person], absolutely.
183
Wills - Drafting - How should a residuary gift to two children equally be worded?
To pay my Residuary Estate to such of my children as are living at my death [who attain the age of [21]] and if more than one in equal shares
184
Wills - Drafting - How should a residuary gift to two children equally, but with substitution clause for THIER children, to make clear to the trustees what should happen, be drafted?
If any child of mine should die before me or before attaining a vested interest in my Residuary Estate leaving a child or children living at his or her death, such child or children shall provided they attain the age of 18 take by substitution and if more than one in equal shares the share of my Residuary Estate which his, her or their parent would have taken had he or she survived me and attained a vested interest.
185
Wills - Drafting - What does the residuary assume has already been paid?
Funeral costs and any debts.
186
Wills - Drafting - What happens with regard to items / residuary passing to issue before the issue have turned 18?
It's held on trust by the trustees instead of being executed by the executors.
187
Wills - Drafting - How should wording for direction with regard to freedom of trustee investment be drafted?
My Trustee may invest trust money with the same full and unrestricted freedom in their choice of investments as if they were an absolute beneficial owner including the power to purchase land wherever situated and to allow any dwelling to be used as a residence by any person or persons having an interest or prospective interest in my Residuary Estate upon such terms and conditions from time to time as my Trustees in their absolute discretion may think fit.
188
Wills - Drafting - Standard wording for requirement to insure property?
To insure against loss or damage howsoever arising to any property for the time being comprised in my Residuary Estate to any amount and to pay all premiums for any such insurance at their discretion out of the income or capital of my Residuary Estate of the property itself.
189
Wills - Drafting - Standard wording to allow power to accept receipt for minor?
In any case where they have an obligation or a discretion under the provisions of my will or under the general law to pay income or capital to or for the benefit of a minor to discharge that obligation or to exercise that discretion if they think fit by making payment either to a parent or a guardian of the minor or to the minor personally if of the age of 16 at least and so that their respective receipts shall be a full discharge to my Trustees who shall not be required to see to the application of any income or capital paid.
190
Wills - Drafting - Standard wording allowing a professional person to charge for business carried out in connection with the estate?
Any of my Trustees being a solicitor or other person engaged in any profession or business shall be entitled to charge and be paid all professional and other charges for any business or act done by him or his firm in connection with the administration of my estate or the trusts hereof (including acts which an executor or trustee could have done personally) on the same basis as if he were not one of my Trustees but employed to carry out the work on their behalf.
191
Wills - Drafting - Standard wording for dating and signing?
IN WITNESS whereof I have hereunto set my hand this __________ day of 20__ Signed by __________________
192
Wills - Drafting - Standard wording for witness signature?
In our joint presence and then by us in his / hers _________________________________
193
What are incorporeal hereditaments?
Rights, easements and rents - in others words, non physical aspects.
194
Who owns Gold and Silver found on land?
Crown
195
Can water be removed from land?
Yes, but need a licence.
196
Can minerals, coal, oil and gas be removed from land?
No, by statute
197
What is the test for use of land above property?
What is reasonably necessary for enjoyment of the property.
198
What are the two types of annexation tests?
Degree of annexation - to what degree is it physically attached Purpose of annexation - to what degree is it a part of the presentation
199
What is a rentcharge?
Requires landowner to make periodic payments to the rentcharge owner (often a former owner) - could be to a developer towards a park or play area.
200
What are LEGAL interests in land? (5)
Mortgages Easements Rentcharge Profit a prendre Right of entry (usually in a lease or rentcharge).
201
What are LEGAL interests in land? (5) ?????? Easements Rentcharge Profit a prendre Right of entry (usually in a lease or rentcharge).
Mortgages
202
What are LEGAL interests in land? (5) Mortgages ???????????? Rentcharge Profit a prendre Right of entry (usually in a lease or rentcharge).
Easements
203
What are LEGAL interests in land? (5) Mortgages Easements ???????????? Profit a prendre Right of entry (usually in a lease or rentcharge).
Rentcharge
204
What are LEGAL interests in land? (5) Mortgages Easements Rentcharge ????????? Right of entry (usually in a lease or rentcharge).
Profit a prendre
205
What are LEGAL interests in land? (5) Mortgages Easements Rentcharge Profit a prendre Right of entry (usually in a lease or rentcharge).
Right of entry
206
What are three types of EQUITABLE interests in property?
Equitable mortgage (steps in where legal mortgage was imperfect) Restrictive covenant Estate contract (agreement to sell at later date)
207
Are equitable interest automatically binding?
Only if notice is given
208
What are overriding interests in property?
Interests which are capable of binding a buyer, that aren't registered.
209
What is the difference between equitable interests and overriding interests?
Equitable interests would normally be protected by entry on the register. Overriding interests would not be registered but are still capable of binding a buyer.
210
Are overriding interests valid in registered or unregistered property?
ONLY registered land.
211
Both legal and equitable interests must be made by what?
Contract and Deed
212
What are the requirements of a contract for land? (6)
Offer Acceptance Consideration Intention to be bound Capacity In writing.
213
What are the requirements of a contract for land? (6) ???????? Acceptance Consideration Intention to be bound Capacity In writing.
Offer
214
What are the requirements of a contract for land? (6) Offer ??????? Consideration Intention to be bound Capacity In writing.
Acceptance
215
What are the requirements of a contract for land? (6) Offer Acceptance ?????????? Intention to be bound Capacity In writing.
Consideration
216
What are the requirements of a contract for land? (6) Offer Acceptance Consideration ????????? to be bound Capacity In writing.
Intention
217
What are the requirements of a contract for land? (6) Offer Acceptance Consideration Intention to be bound ????????? In writing.
Capacity
218
What are the requirements of a contract for land? (6) Offer Acceptance Consideration Intention to be bound Capacity In ????????
writing.
219
How must a deed be validly executed?
Signed Witnessed Delivered (agrees to be bound)
220
How can ownership be proven in unregistered land?
Good root of title (15 years)
221
What documents constitute a good root of title?
Conveyance on sale Deed of gift Mortgage deed Assent
222
What conditions are required to prove good root of title on the document(s) being used?
At least 15 years old Must deal with whole of legal and equitable estate Adequate description of property Not cast any doubt.
223
What is an epitome of title?
A collection of documents proving that there is a good root of title. It is a chronological list of documents, with those documents attached.
224
How will a buyer be bound by equitable interest in unregistered title purchase?
If notice is given. Usually via a land charge.
225
How are home rights protected in unregistered and registered title?
By a type F land charge in unregistered By form HR1 in registered land. However, a form A is used in registered land when a couple splits and their interests convert from joint tenants to tenants in common.
226
What is a C(i) land charge (unregistered)?
Puisne mortgage (second mortgage)
227
What is a C(iv) land charge (unregistered)?
An estate contract (future sale being protected)
228
What is a D(ii) land charge (unregistered)?
Restrictive covenant eg not to use the land as anything other than private dwelling
229
What is a D(iii) land charge (unregistered)?
Equitable easement - tried to be created by deed but was defective - equity steps in.
230
What is a F land charge (unregistered)?
Home occupation rights ie spouse's right to occupy the home.
231
Is it registered or unregistered land where charges are registered against an owner rather than the property?
Unregistered. Once registered it all goes on the registered system against the property.
232
Unregistered land In what scenario (requires all 4 factors) will a buyer take a property free of equitable interest - known as doctrine of notice?
They can show they acted in good faith A buyer for value Acquired a legal interest or estate No notice of equitable interest
233
Unregistered land In what scenario (requires all 4 factors) will a buyer take a property free of equitable interest - known as doctrine of notice? They can show they ??????????? A buyer for value Acquired a legal interest or estate No notice of equitable interest
acted in good faith
234
Unregistered land In what scenario (requires all 4 factors) will a buyer take a property free of equitable interest - known as doctrine of notice? They can show they acted in good faith A buyer for ??????????? Acquired a legal interest or estate No notice of equitable interest
value
235
Unregistered land In what scenario (requires all 4 factors) will a buyer take a property free of equitable interest - known as doctrine of notice? They can show they acted in good faith A buyer for value Acquired a ????????? or ????????? No notice of equitable interest
legal interest or estate
236
Unregistered land In what scenario (requires all 4 factors) will a buyer take a property free of equitable interest - known as doctrine of notice? They can show they acted in good faith A buyer for value Acquired a legal interest or estate No notice of ????????????
equitable interest
237
What four scenarios can override first registration of land, and are automatically binding upon first registration, even if buyer didn't know about them?
A lease granted for 7 years or less Legal easement Local land charge Someone in actual occupation
238
What four scenarios can override first registration of land, and are automatically binding upon first registration, even if buyer didn't know about them? A lease granted ?????????? Legal easement Local land charge Someone in actual occupation
for 7 years or less
239
What four scenarios can override first registration of land, and are automatically binding upon first registration, even if buyer didn't know about them? A lease granted for 7 years or less Legal ??????????? Local land charge Someone in actual occupation
easement
240
What four scenarios can override first registration of land, and are automatically binding upon first registration, even if buyer didn't know about them? A lease granted for 7 years or less Legal easement ???????????? charge Someone in actual occupation
Local land
241
What four scenarios can override first registration of land, and are automatically binding upon first registration, even if buyer didn't know about them? A lease granted for 7 years or less Legal easement Local land charge Someone ????????????
in actual occupation
242
Adverse possession - difference between unregistered and registered land?
In both scenarios - must have NOT had permission. Unregistered: 12 years, owner loses right to recover, and squatter can apply to HMLR for rights to land. Registered: 10 years, squatter gains right merely to apply for the property. If owner says no, that's it.
243
What are the three types of registers on registered property?
Property register Proprietorship register Charges register
244
Registered property What is on the property register?
Address Estate Rights benefiting property
245
Registered property What is on the proprietorship register?
Holder(s) of the legal estate
246
Registered property What is on the Charges register?
Rights burdening the property
247
What events trigger first registration?
Conveyance Assent Deed of gift Grant / assignment of 7+ year lease
248
Within how long of a triggering event must property be registered?
Two months.
249
What is the consequence of failing to register land within two months of a triggering event?
The estate reverts back to the previous holder.
250
What are the four different classes of title?
Title absolute Qualified title Possessory title Good leasehold title
251
What is title absolute?
Can be freehold or leasehold. Means the legal estate is taken with ALL benefiting interest (for example restrictive covenants)
252
What is a qualified title?
Imperfect title (very rare in practice)
253
What is possessory title?
In possession of the land, but not the documents
254
Classes of title - do they apply to both registered and unregistered title?
Mainly unregistered. Once first registration has taken place the class of title is noted, but has no real ongoing purpose.
255
What is a good leasehold title?
Can show own lease, but not landlord's freehold title in addition.
256
What is the process for upgrading a possessory title to title absolute?
If a possessory title is unchallenged for 12 years an application for absolute can be applied for.
257
What is the process for upgrading good leasehold title to absolute leasehold title?
Can upgrade by providing the landlord's freehold title.
258
What should a third party do where land they have an interest in is about to be registered?
Apply for a caution against first registration. Then, the person with the benefit of the caution gets notified when someone tries to register it.
259
At what point does title pass in both unregistered and registered land?
Unregistered on completion Registered on registration
260
What are the three most common overriding interest in land, for the purposes of the SQE?
Legal leases for 7 years or less Unregistered legal easements Interest of persons in actual occupation.
261
Is overreaching exclusive to unregistered property?
No, it can overreach the beneficial interest of people in unregistered or registered titles.
262
What are the requirements for someone in actual occupation to have a beneficial interest?
Often a spouse who contributed to purchase price (behind the scenes interest eg TOLATA) Must NOT be on the title for this to apply.
263
Registered land: Adverse possession. Are there any circumstances where the owner's objection could be overridden?
Where it is unconscionable not to transfer it A reasonable mistake as to boundaries
264
Does someone with an equitable interest only in property rather than legal and equitable still have the right to a share of a sale?
No. The person with an equitable interest can be involved in the selling of the house, but has no right to the proceeds.
265
What is unique about joint tenancy?
Survivorship
266
What is the effect on a property of the death of a joint tenant?
The property vests automatically and immediately in any joint tenant still living.
267
When does a trust of land automatically arise?
Whenever there is more than one owner, regardless of whether joint tenants or tenants in common.
268
In which way can tenants in common set out their share in the property that would be conclusive, regardless of financial contribution?
Via a declaration of trust.
269
What are the four methods to convert a joint tenancy to tenants in common?
Written notice Treating their share as separate (eg contracting to sell, or disposing of a mortgage) Mutual agreement Bankruptcy of one party
270
What happens to a tenancy in common when one of the tenants becomes bankrupt?
The share is transferred to the trustee in bankruptcy.
271
What happens where there is no declaration of trust?
Equity follows the law, and so despite the law ALWAYS being joint tenants (even if the beneficial interest was tenants in common) then the absence of a declaration of trust means it will be equal.
272
What is the process to take a property free of a potential additional person's interest?
Overreaching. The money is paid to two or more trustees (owners).
273
Other than overreaching, what else can be done to ensure anyone else with potential beneficial interest can be purchased free from?
Obtain written release from beneficiary of their rights by having them sign the contract prior to exchange. This includes that they would vacate the property.
274
What should be done if the seller says that a co-owner has died?
Ask for a death certificate and / or overreach.
275
What is the difference between s14 TOLATA and s15 TOLATA?
s14 enables one co-owner to apply to court for an order relating to a trustees duties including an order to sell, relieving the trust's need to obtain consent, or declaring the nature of a person's interest. s15 is a list of the TOLATA factors.
276
What are the factors contained within s15 TOLATA? (4)
Intentions of those who created the trust Purposes for which the subject property is held Welfare of any minor occupier Interest of any secured creditor (bank)
277
What are the factors contained within s15 TOLATA? (4) Intentions of ?????????????????????? Purposes for which the subject property is held Welfare of any minor occupier Interest of any secured creditor (bank)
those who created the trust
278
What are the factors contained within s15 TOLATA? (4) Intentions of those who created the trust ???????????????????????????? is held Welfare of any minor occupier Interest of any secured creditor (bank)
Purposes for which the subject property
279
What are the factors contained within s15 TOLATA? (4) Intentions of those who created the trust Purposes for which the subject property is held Welfare ????????????????? Interest of any secured creditor (bank)
of any minor occupier
280
What are the factors contained within s15 TOLATA? (4) Intentions of those who created the trust Purposes for which the subject property is held Welfare of any minor occupier Interest of ??????????????
any secured creditor (bank)
281
What is the effect of a declaration of trust on a TOLATA claim?
Usually conclusive, but a challenger may be able to prove a different common intention.
282
What factors will be considered by the court in deviating from any declaration of trust?
The court will consider ALL the circumstances and may give the party the proportion it considers fair.
283
What is the likely effect of a lease that has no specified duration or term?
Void for uncertainty.
284
Must a lease be in writing?
Yes, by deed, unless they are for less than 3 years.
285
What is special about leases of three years or less?
If taken at market value they do not require a deed. These leases can be valid even if made orally
286
When will equity step in with regard to leases?
Where the deed was imperfect. If unregistered this can be achieved by a class C(iv) land charge. If registered then on the charges register.
287
What is a licence (note: not to assign)?
A mere personal right to use the land.
288
What is the difference between a lease and a license?
A lease comes with many statutory protections whereas a license does not.
289
What is significant to look out for where there is not exclusive possession of a property, or there is no money being paid?
It means it's likely to be a license rather than a lease. Labelling an agreement a license rather than a lease does not mean it's a license, and it will in fact have the same protections as a lease.
290
What are lease covenants?
Stipulations that are part of the lease, binding landlord and tenant.
291
What are the common covenants found within a lease? (6)
Term / duration of lease Amount of rent Covenant of quiet enjoyment Tenant to maintain repair Restrictions on use Restrictions on alterations
292
What are the common covenants found within a lease? (6) ??????????? of lease Amount of rent Covenant of quiet enjoyment Tenant to maintain repair Restrictions on use Restrictions on alterations
Term / duration
293
What are the common covenants found within a lease? (6) Term / duration of lease Amount of ?????? Covenant of quiet enjoyment Tenant to maintain repair Restrictions on use Restrictions on alterations
rent
294
What are the common covenants found within a lease? (6) Term / duration of lease Amount of rent Covenant of ??????????? Tenant to maintain repair Restrictions on use Restrictions on alterations
quiet enjoyment
295
What are the common covenants found within a lease? (6) Term / duration of lease Amount of rent Covenant of quiet enjoyment Tenant to ???????????? Restrictions on use Restrictions on alterations
maintain repair
296
What are the common covenants found within a lease? (6) Term / duration of lease Amount of rent Covenant of quiet enjoyment Tenant to maintain repair Restrictions on ??? Restrictions on alterations
use
297
What are the common covenants found within a lease? (6) Term / duration of lease Amount of rent Covenant of quiet enjoyment Tenant to maintain repair Restrictions on use Restrictions on ???????
alterationsw
298
What is the covenant of quiet enjoyment in a lease?
The tenant can enjoy the property without unreasonable interference by landlord. Landlord is not liable for lawful acts of tenants.
299
What restrictions on alteration are typically found in a lease?
Not to perform any building works Decoration may require consent.
300
What remedies are available for breach of lease?
Forfeit Damages Injunction For repair - self help clause
301
Can a Landlord automatically bring a lease to an end for a breach of covenant?
No, it is not automatically contained with in a lease. Even when it is, the tenant has certain rights such as to settle arrears and to apply for relief from forfeiture.
302
What actions does a tenant have available when threatened with forfeiture?
Check whether the lease enables it (not automatically). Offer to settle arrears. Apply for relief from forfeiture.
303
When may a Landlord invoke the self-help clause (known as Jervis v Harris)?
When the tenant has failed to keep the building in repair. The Landlord must give the tenant notice of the work to be done, and they have failed to do it.
304
What is a Jervis v Harris clause?
Used in breach of repair covenant. Where the tenant has failed to keep the building in repair, the landlord may enter the property to effect repairs.
305
Who pays for the repairs when the Landlord has invoked the Self-help clause in Jervis v Harris?
The tenant, as a debt.
306
What is assignment of a lease?
The sale of the remainder of the lease for a third party. Very common in Commercial property.
307
What must a tenant gain from their landlord in order to assign a lease?
License to assign.
308
What is significant about January 1995 in lease assignment?
Prior to Jan 1995 any Tenant looking to assign remained fully liable to the Landlord, even after assignment. This meant that a breach of covenant left both the original and subsequent tenant were liable. After Jan 1995 the outgoing tenant was released from liability, meaning only the incoming tenant was directly liable to the Landlord.
309
What is an authorised guarantee agreement (AGA)?
A requirement by a Landlord to guarantee the incoming tenant's performance.
310
Is the requirement for an authorised guarantee agreement included as standard in a lease?
No.
311
Does an authorised guarantee agreement extend beyond the next incoming client?
No. The incoming tenant would then need a new AGA for the next, and so on.
312
What is an absolute covenant on assignement?
It is where there is to be no assignment of the lease permitted at all without the Landlord's consent, and the Landlord is under no obligation to provide reasoning for any refusal.
313
If there is a valid will with an executor appointed, but the will fails to deal with the whole estate, does the executor have the power to deal with the partial intestacy or must they apply for grant of letters with will annexed?
They have the power to deal with both the will and the part intestacy.
314
Under what circumstances would it be unconscionable to dispossess an adverse possessor?
For instance the possessor has a legitimate claim to the land based on a mistake as to the boundary, and the mistake was reasonable.
315
What is a qualified covenant on assignment?
It means that assignment is generally possible but usually with the landlord's consent. In this instance statute determines that consent must not be unreasonably withheld.
316
To what do the terms dominant and servient tenement relate?
The dominant tenement is the property which enjoys the rights over another The servient tenement is the property that suffers the burden of another property having rights over it.
317
What are easements?
Where one property has a right over another.
318
What are common types of easements?
Right of way (by foot or vehicle) Utility access Drainage
319
What is an easement of necessity?
Where it's necessary for an easement to automatically arise in order for a property to meet an adjoining road where there is no other option. This can give rise to a legal easement, even though there is no deed.
320
How is an easement formed formally?
By deed, and then placed in the Property register (Dominant tenement) and the Charges register (Servient tenement), as applicable.
321
Can easements be informal?
Yes, for example by necessity but also by common intention and prior use.
322
What are the two types of profit a prendre?
Appurtenant and in gross.
323
What is a profit a prendre appurtenant?
A right to take something from land, that is attached to the land. It is not transferrable in it's own right.
324
What is a profit a prendre in gross?
A right to take something from the land, that is attached to the land. It IS transferrable in it's own right.
325
Is an informal easement binding?
If it's informal it means it's not effective in law, but may be covered by equity, especially if it contains all terms and is signed.
326
What is an easement by reservation?
Where the seller retains the right to use a portion of the land for a specific purpose.
327
Other than expressly granted easements, how else can easements arise?
By prescription or by implied grant.
328
What determines whether an easement is effective at law or merely by equity?
The existence of a deed. However, necessity can also be effective at law, without a deed.
329
How can an easement arise through prescription? (2)
Used without challenge for 20 years. Without force, secrecy or permission
330
How can an easement arise through prescription? (2) Used without challenge for ????????. Without force, secrecy or permission
20 years
331
How can an easement arise through prescription? (2) Used without challenge for 20 years. Without ?????, secrecy or permission
force
332
How can an easement arise through prescription? (2) Used without challenge for 20 years. Without force, ??????? or permission
secrecy
333
How can an easement arise through prescription? (2) Used without challenge for 20 years. Without force, secrecy or ???????
permission
334
Other than express grant, or prescription, how else can easements arise?
Through implied grant.
335
How can implied grant of easement arise?
By necessity (such as access) By common intention By existing use
336
What is the test for a grant of easement by existing use? (3 strands)
It requires that the dominant and servient parcels of land were both previously held by one owner. -and- The easement is CONTINUOUS, APPARENT and NECESSARY. -and- Has been, and was, used by the seller for the benefit of the land now being sold.
337
What is the test for a grant of easement by existing use? It requires that the dominant and servient parcels of land were both ?????????????. -and- The easement is CONTINUOUS, APPARENT and NECESSARY. -and- Has been, and was, used by the seller for the benefit of the land now being sold.
previously held by one owner
338
What is the test for a grant of easement by existing use? It requires that the dominant and servient parcels of land were both previously held by one owner. -and- The easement is ??????????, APPARENT and NECESSARY. -and- Has been, and was, used by the seller for the benefit of the land now being sold.
CONTINUOUS
339
What is the test for a grant of easement by existing use? It requires that the dominant and servient parcels of land were both previously held by one owner. -and- The easement is CONTINUOUS, ?????????? and NECESSARY. -and- Has been, and was, used by the seller for the benefit of the land now being sold.
APPARENT
340
What is the test for a grant of easement by existing use? It requires that the dominant and servient parcels of land were both previously held by one owner. -and- The easement is CONTINUOUS, APPARENT and ?????????????. -and- Has been, and was, used by the seller for the benefit of the land now being sold.
NECESSARY
341
What is the test for a grant of easement by existing use? It requires that the dominant and servient parcels of land were both previously held by one owner. -and- The easement is CONTINUOUS, APPARENT and NECESSARY. -and- Has been, and was, ?????????????? the land now being sold.
used by the seller for the benefit of
342
How is an easement recorded in unregistered property?
Via a D(iii) land charge, and this binds all parties.
343
What is the difference between a covenant and an easement?
Easement is the right to use another piece of land for a specific purpose. Covenant is a legal obligation on a property owner. Easements are usually permanent whereas covenants can be removed.
344
Is a covenant not to allow the fence on the eastern boundary to fall in to disrepair a positive or negative covenant?
Positive, despite the wording.
345
What is the key difference between positive and negative covenants?
Negative covenants require nothing to be done.
346
Why is it that positive covenants do not usually run with the land?
Lack of privity of contract. To run with the land would require a new agreement.
347
Do negative covenants run with equity, law or both?
Generally only equity.
348
As well as whether the covenant is negative or positive, there is also a burden and benefit. What does this mean?
The burden of a negative covenant would prevent the owner being able to do something. The benefit will be for the neighbour who enjoys the fact that the the owner is unable to do a particular thing.
349
To bind successors in equity, a negative covenant's burden will pass if three conditions apply - what are they?
The covenant touches and concerns the land (ie isn't merely a personal right) Burden was intended to run with the land (by the original parties - this is assumed automatically by statute, unless the parties state otherwise) The successor in title has notice of the covenant (charges register / D(iii) land charge)
350
To bind successors in equity, a negative covenant's BURDEN will pass if three conditions apply - what are they? The covenant ?????? and ???????? the land Burden was intended to run with the land The successor in title has notice of the covenant
touches and concerns
351
To bind successors in equity, a negative covenant's burden will pass if three conditions apply - what are they? The covenant touches and concerns the land Burden was ???????????? with the land The successor in title has notice of the covenant
intended to run
352
To bind successors in equity, a negative covenant's burden will pass if three conditions apply - what are they? The covenant touches and concerns the land Burden was intended to run with the land The successor in title has ?????????
notice of the covenant
353
What does touch and concern the land mean?
Actually concerns the land itself, rather than a mere personal right.
354
What is the assumption by statute that is in place unless the parties express otherwise, when it comes to binding a successor in equitable covenant of land?
That the parties intended it to run with the land.
355
In what way can a successor in title have notice of a covenant?
Either via an entry on the charges register, or D(iii) land charge (unregistered land).
356
What are the four ways that a BENEFIT to a restrictive covenant of land can pass?
If the covenant touches and concerns the land Through annexation (benefit is attached to the land - assumed unless expressly excluded) Through express agreement As part of a building scheme
357
Who is bound by a positive covenant of land?
Only the original covenantor and covenantee.
358
How can a positive covenant pass at law? (this is rare) (5)
Where covered by indemnity for each successive buyer. If accepting a benefit (such as use of a road) then must also accept the burden (payment of upkeep) Covenant touches and concerns the land Original covenantee held legal estate in land to be benefitted Covenantee's successor it title now holds legal estate to land benefitted
359
How can a positive covenant pass at law? (this is rare) (5) Where covered by ?????????? for each successive buyer. If accepting a benefit (such as use of a road) then must also accept the burden (payment of upkeep) Covenant touches and concerns the land Original covenantee held legal estate in land to be benefitted Covenantee's successor it title now holds legal estate to land benefitted
indemnity
360
How can a positive covenant pass at law? (this is rare) (5) Where covered by indemnity for each successive buyer. If accepting a benefit (such as use of a road) then must also accept ?????????????? Covenant touches and concerns the land Original covenantee held legal estate in land to be benefitted Covenantee's successor it title now holds legal estate to land benefitted
the burden (payment of upkeep)
361
How can a positive covenant pass at law? (this is rare) (5) Where covered by indemnity for each successive buyer. If accepting a benefit (such as use of a road) then must also accept the burden (payment of upkeep) Covenant ????????????? the land Original covenantee held legal estate in land to be benefitted Covenantee's successor it title now holds legal estate to land benefitted
touches and concerns
362
How can a positive covenant pass at law? (this is rare) (5) Where covered by indemnity for each successive buyer. If accepting a benefit (such as use of a road) then must also accept the burden (payment of upkeep) Covenant touches and concerns the land ???????????????? held legal estate in land to be benefitted Covenantee's successor it title now holds legal estate to land benefitted
Original covenantee
363
How can a positive covenant pass at law? (this is rare) (5) Where covered by indemnity for each successive buyer. If accepting a benefit (such as use of a road) then must also accept the burden (payment of upkeep) Covenant touches and concerns the land Original covenantee held legal estate in land to be benefitted Covenantee's ?????????? now holds legal estate to land benefitted
successor it title
364
What can a seller require of an incoming buyer to enter into, to provide that the covenant would be stuck to?
to pay into indemnity insurance
365
Where the seller has required an incoming buyer to purchase indemnity insurance against them sticking to a covenant, what recourse does a neighbour have should they stop paying?
The neighbour could potentially sue the previous owner.
366
Who benefits from indemnity insurance against breach of covenant by a buyer?
The seller of the house, to protect them from being sued by a neighbour. Should this then be breached the seller could sue their buyer.
367
In what way must a mortgage be made?
By deed.
368
What is an equitable mortgage?
Where parties attempted to enter into a mortgage but it was defective in some way. Or, a mortgage arising from some other way, such as via a charge.
369
How is a mortgage recorded in registered and unregistered land?
On the charges register (registered) Lender holds deeds (unregistered)
370
What options does a lender have for enforcement of a mortgage?
Sue for debt Foreclose (lender becomes owner) Appoint receiver Take possession Sell the land (by far the most common)
371
How many mortgage payments must be missed before a lender can take enforcement action?
At least two. Usually at least 3.
372
What options does a lender have for enforcement of a mortgage? ??? for debt Foreclose (lender becomes owner) Appoint receiver Take possession Sell the land (by far the most common)
Sue
373
What options does a lender have for enforcement of a mortgage? Sue for debt ??????? (lender becomes owner) Appoint receiver Take possession Sell the land (by far the most common)
Foreclose
374
What options does a lender have for enforcement of a mortgage? Sue for debt Foreclose (lender becomes owner) Appoint ????? Take possession Sell the land (by far the most common)
receiver
375
What options does a lender have for enforcement of a mortgage? Sue for debt Foreclose (lender becomes owner) Appoint receiver Take ??????????? Sell the land (by far the most common)
possession
376
What options does a lender have for enforcement of a mortgage? Sue for debt Foreclose (lender becomes owner) Appoint receiver Take possession ??????????? (by far the most common)
Sell the land
377
If more than one mortgage, and enforcement action becomes necessary - in what order are the mortgages prioritised?
The first in time always takes priority.
378
What happens to a 2nd mortgage holder if a 1st mortgage holder decides to sell?
1st mortgage holder takes the property free of the second lender’s interest.
379
What happens if a borrowed continues to pay the first mortgage holder but defaults on the second, and the second mortgage holder wishes to take enforcement action?
The 2nd mortgage holder MUST pay off the 1st mortgage first. They can’t take anything for their debt until the 1st is fully paid off.
380
Under what circumstances can a solicitor represent both a lender and a buyer? (3)
The lender is an approved institution (ie a bank) Standard certificate of title is provided Solicitor maintains confidentiality between the two.
381
Under what circumstances can a solicitor represent both a lender and a buyer? The lender is ??????????????? Standard certificate of title is provided Solicitor maintains confidentiality between the two.
an approved institution (ie a bank)
382
Under what circumstances can a solicitor represent both a lender and a buyer? The lender is an approved institution (ie a bank) ????????????? of title is provided Solicitor maintains confidentiality between the two.
Standard certificate
383
Under what circumstances can a solicitor represent both a lender and a buyer? The lender is an approved institution (ie a bank) Standard certificate of title is provided Solicitor ????????????? between the two.
maintains confidentiality
384
What should a solicitor give advice on where there is more than one buyer / seller?
Co-ownership advice
385
If clients are buying as tenants in common then what should the solicitor advise is set up?
A declaration of trust, setting out their shares of ownership.
386
What should a solicitor check very early, on the title documents?
Any change of names.
387
What is included on the PIF (Property information form)? (4)
Disputes Building work Utilities connected Occupiers present
388
What is included on the PIF (Property information form)? ??????????? Building work Utilities connected Occupiers present
Disputes
389
What is included on the PIF (Property information form)? Disputes ????????? Utilities connected Occupiers present
Building work
390
What is included on the PIF (Property information form)? Disputes Building work ????????????? Occupiers present
Utilities connected
391
What is included on the PIF (Property information form)? Disputes Building work Utilities connected ???????????????
Occupiers present
392
What is included on the Fittings and Contents form?
Personal property included / excluded Price
393
What is in the contract package sent by the seller's solicitor?
Draft contract in duplicate Property Information form Fittings and contents form Copy of seller's title (either epitome / root or official copy) Copy of title plan Any guarantees / planning permissions
394
What is in the contract package sent by the seller's solicitor? ??????? in duplicate Property Information form Fittings and contents form Copy of seller's title (either epitome / root or official copy) Copy of title plan Any guarantees / planning permissions
Draft contract
395
What is in the contract package sent by the seller's solicitor? Draft contract in duplicate ?????????????? form Fittings and contents form Copy of seller's title (either epitome / root or official copy) Copy of title plan Any guarantees / planning permissions
Property Information
396
What is in the contract package sent by the seller's solicitor? Draft contract in duplicate Property Information form ?????????????? form Copy of seller's title (either epitome / root or official copy) Copy of title plan Any guarantees / planning permissions
Fittings and contents
397
What is in the contract package sent by the seller's solicitor? Draft contract in duplicate Property Information form Fittings and contents form ????????????????? (either epitome / root or official copy) Copy of title plan Any guarantees / planning permissions
Copy of seller's title
398
What is in the contract package sent by the seller's solicitor? Draft contract in duplicate Property Information form Fittings and contents form Copy of seller's title (either epitome / root or official copy) Copy of ????????? Any guarantees / planning permissions
title plan
399
What is in the contract package sent by the seller's solicitor? Draft contract in duplicate Property Information form Fittings and contents form Copy of seller's title (either epitome / root or official copy) Copy of title plan Any ??????? / ????????? permissions
guarantees / planning
400
Which type of defects need to be disclosed?
Latent defects Not patent defects - think - patently obvious.
401
What is the consequence of not disclosing latent defects?
Rescind the contract Claim damages (eg deposit / other losses)
402
What is the consequence of wilfully attempting to hide patent defects?
Liable in tort.
403
Who bears the responsibility for discovering patent defects?
The buyer - caveat emptor (buyer beware)
404
Is the existence of an underground pipe a latent or patent defect?
Latent - couldn't be discovered through reasonable search by a buyer.
405
Is the existence of ants in the wall a latent or patent defect?
Patent - buyer should have inspected (apparently!)
406
What is included in a contract package for a NEW lease? (4)
Draft contract with lease annexed Seller's freehold title PIF (Property information form) Replies to standard pre contract enquiries (eg boundaries, disputes and services supplied to the flat)
407
What is included in a contract package for a NEW lease? ????????? with lease annexed Seller's freehold title PIF (Property information form) Replies to standard pre contract enquiries (eg boundaries, disputes and services supplied to the flat)
Draft contract
408
What is included in a contract package for a NEW lease? Draft contract with lease annexed Seller's ???????????? PIF (Property information form) Replies to standard pre contract enquiries (eg boundaries, disputes and services supplied to the flat)
freehold title
409
What is included in a contract package for a NEW lease? Draft contract with lease annexed Seller's freehold title PIF ???????????????????? Replies to standard pre contract enquiries (eg boundaries, disputes and services supplied to the flat)
(Property information form)
410
What is included in a contract package for a NEW lease? Draft contract with lease annexed Seller's freehold title PIF (Property information form) Replies to standard pre contract enquiries (eg ?????????????????????)
boundaries, disputes and services supplied to the flat
411
What is included in a contract package for a NEW BUILD lease? (5)
1. a copy of the planning permission and building regulations consent 2. agreements with LA or local water company relating to roads, street lights, drainage etc 3. new building warranty (for builds less than 10 years old) 4. A service charge budget 5. Details of management company responsible for maintaining common areas
412
What is included in a contract package for a NEW BUILD lease? (5) ????????????? & ???????? regulations consent Utilities agreements, inc street lights, drainage etc New build warranty Service charge budget Management company info
Planning permission & building
413
What is included in a contract package for a NEW BUILD lease? (5) Planning permission & building regulations consent ?????????????, inc street lights, drainage etc New build warranty Service charge budge Management company info
Utilities agreements
414
What is included in a contract package for a NEW BUILD lease? (5) Planning permission & building regulations consent Utilities agreements, inc street lights, drainage etc New build ????????? Service charge budget Management company info
warranty
415
What is included in a contract package for a NEW BUILD lease? (5) Planning permission & building regulations consent Utilities agreements, inc street lights, drainage etc New build warranty Service charge budget Management company info
416
What is included in a contract package for a NEW BUILD lease? (5) Planning permission & building regulations consent Utilities agreements, inc street lights, drainage etc New build warranty Service charge budget ??????????????? info
Management company
417
What is contained in contract package for assignment of existing lease? (8)
i. Draft contract in duplicate ii. Official copies of leasehold title and plan iii. Copy of the lease iv. PIF, Leasehold information form, and fittings and contents form v. Copy of landlord’s freehold register of title and plan vi. Insurance policy for whole building, latest premium receipt vii. Copy of the last three years services charge accounts viii. If property less than 10 years old, copy of new build warranty, planning permissions and building regs consent
418
What is contained in contract package for assignment of existing lease? (8) i. ???????????????? in duplicate ii. Official copies of leasehold title and plan iii. Copy of the lease iv. PIF, Leasehold information form, and fittings and contents form v. Copy of landlord’s freehold register of title and plan vi. Insurance policy for whole building, latest premium receipt vii. Copy of the last three years services charge accounts viii. If property less than 10 years old, copy of new build warranty, planning permissions and building regs consent
Draft contract
419
What is contained in contract package for assignment of existing lease? (8) i. Draft contract in duplicate ii. Official copies of leasehold title and plan iii. Copy of the lease iv. PIF, Leasehold information form, and fittings and contents form v. Copy of landlord’s freehold register of title and plan vi. Insurance policy for whole building, latest premium receipt vii. Copy of the last three years services charge accounts viii. If property less than 10 years old, copy of new build warranty, planning permissions and building regs consent
420
What is contained in contract package for assignment of existing lease? (8) i. Draft contract in duplicate ii. Official copies of leasehold title and plan iii. Copy of the lease iv. PIF, Leasehold information form, and fittings and contents form v. Copy of landlord’s freehold register of title and plan vi. Insurance policy for whole building, latest premium receipt vii. Copy of the last three years services charge accounts viii. If property less than 10 years old, copy of new build warranty, planning permissions and building regs consent
421
What is contained in contract package for assignment of existing lease? (8) i. Draft contract in duplicate ii. Official copies of leasehold title and plan iii. Copy of the lease iv. PIF, Leasehold information form, and fittings and contents form v. Copy of landlord’s freehold register of title and plan vi. Insurance policy for whole building, latest premium receipt vii. Copy of the last three years services charge accounts viii. If property less than 10 years old, copy of new build warranty, planning permissions and building regs consent
422
What is contained in contract package for assignment of existing lease? (8) i. Draft contract in duplicate ii. Official copies of leasehold title and plan iii. Copy of the lease iv. PIF, Leasehold information form, and fittings and contents form v. Copy of landlord’s freehold register of title and plan vi. Insurance policy for whole building, latest premium receipt vii. Copy of the last three years services charge accounts viii. If property less than 10 years old, copy of new build warranty, planning permissions and building regs consent
423
What is contained in contract package for assignment of existing lease? (8) i. Draft contract in duplicate ii. Official copies of leasehold title and plan iii. Copy of the lease iv. PIF, Leasehold information form, and fittings and contents form v. Copy of landlord’s freehold register of title and plan vi. Insurance policy for whole building, latest premium receipt vii. Copy of the last three years services charge accounts viii. If property less than 10 years old, copy of new build warranty, planning permissions and building regs consent
424
What is contained in contract package for assignment of existing lease? (8) i. Draft contract in duplicate ii. Official copies of leasehold title and plan iii. Copy of the lease iv. PIF, Leasehold information form, and fittings and contents form v. Copy of landlord’s freehold register of title and plan vi. Insurance policy for whole building, latest premium receipt vii. Copy of the last three years services charge accounts viii. If property less than 10 years old, copy of new build warranty, planning permissions and building regs consent
425
What is contained in contract package for assignment of existing lease? (8) i. Draft contract in duplicate ii. Official copies of leasehold title and plan iii. Copy of the lease iv. PIF, Leasehold information form, and fittings and contents form v. Copy of landlord’s freehold register of title and plan vi. Insurance policy for whole building, latest premium receipt vii. Copy of the last three years services charge accounts viii. If property less than 10 years old, copy of new build warranty, planning permissions and building regs consent
426
What are contained in the standard conditions of sale, used in all residential transactions? (8)
i. Particulars of sale – name of parties, freehold / leasehold, type of guarantee, completion date, purchase price ii. Standard conditions of sale - inclusive of VAT, 10% deposit, related sale means deposit can be used, deposits held by seller's solicitor as stakeholder iii. Special conditions of sale – specific to transaction ie vacant on completion, timelines for completion iv. Seller's title to property v. Any specific obligations (covenants) to be passed on. Standard conditions of sale provide that the buyer agrees to perform the obligation and to indemnify the seller if the buyer breaches the obligation in future. vi. Risk of loss passes to buyer on exchange of contracts. vii. Seller has no duty to insure after exchange, though both parties usually will. viii. If no completion date inserted, the standard conditions provide that completion will be 20 WORKING days after exchange.
427
What are contained in the standard conditions of sale, used in all residential transactions? (8) i. Particulars of sale – ??????????????? ii. Standard conditions of sale - inclusive of VAT, 10% deposit, related sale means deposit can be used, deposits held by seller's solicitor as stakeholder iii. Special conditions of sale – specific to transaction ie vacant on completion, timelines for completion iv. Seller's title to property v. Any specific obligations (covenants) to be passed on. Standard conditions of sale provide that the buyer agrees to perform the obligation and to indemnify the seller if the buyer breaches the obligation in future. vi. Risk of loss passes to buyer on exchange of contracts. vii. Seller has no duty to insure after exchange, though both parties usually will. viii. If no completion date inserted, the standard conditions provide that completion will be 20 WORKING days after exchange.
name of parties, freehold / leasehold, type of guarantee, completion date, purchase price
428
What are contained in the standard conditions of sale, used in all residential transactions? (8) i. Particulars of sale – name of parties, freehold / leasehold, type of guarantee, completion date, purchase price ii. Standard conditions of sale - ?????????? iii. Special conditions of sale – specific to transaction ie vacant on completion, timelines for completion iv. Seller's title to property v. Any specific obligations (covenants) to be passed on. Standard conditions of sale provide that the buyer agrees to perform the obligation and to indemnify the seller if the buyer breaches the obligation in future. vi. Risk of loss passes to buyer on exchange of contracts. vii. Seller has no duty to insure after exchange, though both parties usually will. viii. If no completion date inserted, the standard conditions provide that completion will be 20 WORKING days after exchange.
inclusive of VAT, 10% deposit, related sale means deposit can be used, deposits held by seller's solicitor as stakeholder
429
What are contained in the standard conditions of sale, used in all residential transactions? (8) i. Particulars of sale – name of parties, freehold / leasehold, type of guarantee, completion date, purchase price ii. Standard conditions of sale - inclusive of VAT, 10% deposit, related sale means deposit can be used, deposits held by seller's solicitor as stakeholder iii. Special conditions of sale –????????????? iv. Seller's title to property v. Any specific obligations (covenants) to be passed on. Standard conditions of sale provide that the buyer agrees to perform the obligation and to indemnify the seller if the buyer breaches the obligation in future. vi. Risk of loss passes to buyer on exchange of contracts. vii. Seller has no duty to insure after exchange, though both parties usually will. viii. If no completion date inserted, the standard conditions provide that completion will be 20 WORKING days after exchange.
specific to transaction ie vacant on completion, timelines for completion
430
What are contained in the standard conditions of sale, used in all residential transactions? (8) i. Particulars of sale – name of parties, freehold / leasehold, type of guarantee, completion date, purchase price ii. Standard conditions of sale - inclusive of VAT, 10% deposit, related sale means deposit can be used, deposits held by seller's solicitor as stakeholder iii. Special conditions of sale – specific to transaction ie vacant on completion, timelines for completion iv. Seller's ???????????? v. Any specific obligations (covenants) to be passed on. Standard conditions of sale provide that the buyer agrees to perform the obligation and to indemnify the seller if the buyer breaches the obligation in future. vi. Risk of loss passes to buyer on exchange of contracts. vii. Seller has no duty to insure after exchange, though both parties usually will. viii. If no completion date inserted, the standard conditions provide that completion will be 20 WORKING days after exchange.
title to property
431
What are contained in the standard conditions of sale, used in all residential transactions? (8) i. Particulars of sale – name of parties, freehold / leasehold, type of guarantee, completion date, purchase price ii. Standard conditions of sale - inclusive of VAT, 10% deposit, related sale means deposit can be used, deposits held by seller's solicitor as stakeholder iii. Special conditions of sale – specific to transaction ie vacant on completion, timelines for completion iv. Seller's title to property v. Any ?????????????? Standard conditions of sale provide that the buyer agrees to perform the obligation and to indemnify the seller if the buyer breaches the obligation in future. vi. Risk of loss passes to buyer on exchange of contracts. vii. Seller has no duty to insure after exchange, though both parties usually will. viii. If no completion date inserted, the standard conditions provide that completion will be 20 WORKING days after exchange.
specific obligations (covenants) to be passed on.
432
What are contained in the standard conditions of sale, used in all residential transactions? (8) i. Particulars of sale – name of parties, freehold / leasehold, type of guarantee, completion date, purchase price ii. Standard conditions of sale - inclusive of VAT, 10% deposit, related sale means deposit can be used, deposits held by seller's solicitor as stakeholder iii. Special conditions of sale – specific to transaction ie vacant on completion, timelines for completion iv. Seller's title to property v. Any specific obligations (covenants) to be passed on. Standard conditions of sale provide that the buyer agrees to perform the obligation and to indemnify the seller if the buyer breaches the obligation in future. vi. Risk of loss ????????????????? vii. Seller has no duty to insure after exchange, though both parties usually will. viii. If no completion date inserted, the standard conditions provide that completion will be 20 WORKING days after exchange.
passes to buyer on exchange of contracts.
433
What are contained in the standard conditions of sale, used in all residential transactions? (8) i. Particulars of sale – name of parties, freehold / leasehold, type of guarantee, completion date, purchase price ii. Standard conditions of sale iii. Special conditions of sale – specific to transaction ie vacant on completion, timelines for completion iv. Seller's title to property v. Any specific obligations (covenants) to be passed on. Standard conditions of sale provide that the buyer agrees to perform the obligation and to indemnify the seller if the buyer breaches the obligation in future. vi. Risk of loss passes to buyer on exchange of contracts. vii. Seller has no ??????????????, though both parties usually will. viii. If no completion date inserted, the standard conditions provide that completion will be 20 WORKING days after exchange.
duty to insure after exchange
434
What are contained in the standard conditions of sale, used in all residential transactions? (8) i. Particulars of sale – name of parties, freehold / leasehold, type of guarantee, completion date, purchase price ii. Standard conditions of sale - inclusive of VAT, 10% deposit, related sale means deposit can be used, deposits held by seller's solicitor as stakeholder iii. Special conditions of sale – specific to transaction ie vacant on completion, timelines for completion iv. Seller's title to property v. Any specific obligations (covenants) to be passed on. Standard conditions of sale provide that the buyer agrees to perform the obligation and to indemnify the seller if the buyer breaches the obligation in future. vi. Risk of loss passes to buyer on exchange of contracts. vii. Seller has no duty to insure after exchange, though both parties usually will. viii. If no completion date inserted, the standard conditions provide that completion will be ??????????? after exchange.
20 WORKING days
435
What additional / optional three typical special conditions can be inserted into the standard conditions of sale?
Stipulation of vacant on completion, or whether there is a tenant Different time for completion Any occupiers - must confirm relinquishment of any rights
436
Upon receiving the seller's contract package, what should the buyer's solicitor do? (3)
Raise pre-contract enquiries if there are any issues with title For any defect in title, resolve to enter into a deed of variation or a deed a rectification Where any issue of defect in title is not resolvable, require indemnity insurance from the seller.
437
Upon receiving the seller's contract package, what should the buyer's solicitor do? (3) Raise ???????????? if there are any issues with title For any defect in title, resolve to enter into a deed of variation or a deed a rectification Where any issue of defect in title is not resolvable, require indemnity insurance from the seller.
pre-contract enquiries
438
Upon receiving the seller's contract package, what should the buyer's solicitor do? (3) Raise pre-contract enquiries if there are any issues with title For any defect in title, resolve to enter into a ???????????? or ????????????????? Where any issue of defect in title is not resolvable, require indemnity insurance from the seller.
deed of variation or a deed a rectification
439
Upon receiving the seller's contract package, what should the buyer's solicitor do? (3) Raise pre-contract enquiries if there are any issues with title For any defect in title, resolve to enter into a deed of variation or a deed a rectification Where any issue of defect in title is not resolvable, require ?????????????? from the seller.
indemnity insurance
440
Upon receiving title from the seller's solicitor the land is unregistered - what should the solicitor do? (3)
Check whether the land should already have been registered, and if so, ask that it is. If not, check epitome of title reveals full 15 years root of title, with nothing casting doubt on the title. Order index map search to reveal whether property is fully or partially registered.
441
What should happen where are financial land charges against the property by the local authority, revealed in a search, but not on the charges register? (for example where LA has paid fees for homeowner to go into LA care)
Raise enquiries, and ask seller to undertake to repay charges.
442
What does the local land charges register show? (5)
Enforceable charges or obligations affecting a property, including:- Planning permissions Conservation areas Tree preservation orders Any listed buildings Adopted roads / rights of way
443
What does the local land charges register show? (5) ??????????? Conservation areas Tree preservation orders Any listed buildings Adopted roads / rights of way
Planning permissions
444
What does the local land charges register show? (5) Planning permissions ?????????????? Tree preservation orders Any listed buildings Adopted roads / rights of way
Conservation areas
445
What does the local land charges register show? (5) Planning permissions Conservation areas ????????????? Any listed buildings Adopted roads / rights of way
Tree preservation orders
446
What does the local land charges register show? (5) Planning permissions Conservation areas Tree preservation orders Any ????????? Adopted roads / rights of way
listed buildings
447
What does the local land charges register show? (5) Planning permissions Conservation areas Tree preservation orders Any listed buildings Adopted ???????????
roads / rights of way
448
Upon receiving title from the seller's solicitor the land is unregistered - what should the solicitor do? (3) Check whether ?????????????, and if so, ask that it is. If not, check epitome of title reveals full 15 years root of title, with nothing casting doubt on the title. Order index map search to reveal whether property is fully or partially registered.
the land should already have been registered
449
Upon receiving title from the seller's solicitor the land is unregistered - what should the solicitor do? (3) Check whether the land should already have been registered, and if so, ask that it is. If not, check ??????????????????????? with ?????????????? on the title. Order index map search to reveal whether property is fully or partially registered.
epitome of title reveals full 15 years root of title, with nothing casting doubt
450
Upon receiving title from the seller's solicitor the land is unregistered - what should the solicitor do? (3) Check whether the land should already have been registered, and if so, ask that it is. If not, check epitome of title reveals full 15 years root of title, with nothing casting doubt on the title. Order ????????????????????????.
index map search to reveal whether property is fully or partially registered
451
What are the three main searches carried out when buying property?
Local land charge Drainage and water Environmental
452
What are the three main searches carried out when buying property? ??????????? Drainage and water Environmental
Local land charge
453
What are the three main searches carried out when buying property? Local land charge ??????????? Environmental
Drainage and water
454
What are the three main searches carried out when buying property? Local land charge Drainage and water ??????????????
Environmental
455
What are the main optional searches considered? (5)
Private road proposals Major gas pipelines Chancel liability Common land Bankruptcy (if buying with a mortgage)
456
What are the main optional searches considered? (5) ???????? proposals Major gas pipelines Chancel liability Common land Bankruptcy (if buying with a mortgage)
Private road
457
What are the main optional searches considered? (5) Private road proposals Major ????????? Chancel liability Common land Bankruptcy (if buying with a mortgage)
gas pipelines
458
What are the main optional searches considered? (5) Private road proposals Major gas pipelines ???????? liability Common land Bankruptcy (if buying with a mortgage)
Chancel
459
What are the main optional searches considered? (5) Private road proposals Major gas pipelines Chancel liability ????????????? Bankruptcy (if buying with a mortgage)
Common land
460
What are the main optional searches considered? (5) Private road proposals Major gas pipelines Chancel liability Common land ???????????? (if buying with a mortgage)
Bankruptcy
461
What is chancel liability?
Only for unregistered land or not transferred since October 2013, checks for liability towards local church upkeep.
462
What is considered in an environmental search?
Determines whether there is any contaminated land (because owner would be liable for clean up costs)
463
What is considered in a drainage and water search?
Includes information about water supply, metres and public sewers
464
After the searches have been completed what should the solicitor always advise a buyer? (3)
To make another check of the property, specifically to look for evidence of rights of way, persons in occupation and to check the physical condition of the property.
465
In a commercial setting the property standard enquiries replaces the property information form - but what does it cover in addition?
Boundaries Condition of property Fire safety Planning regulations
466
When should a common land search be carried out?
Where the property abuts common land or a village green.
467
After the searches have been completed what should the solicitor always advise a buyer? To make another check of the property, specifically to look for ???????????????, persons in occupation and to check the physical condition of the property.
evidence of rights of way
468
After the searches have been completed what should the solicitor always advise a buyer? To make another check of the property, specifically to look for evidence of rights of way, ?????????????? and to check the physical condition of the property.
persons in occupation
469
After the searches have been completed what should the solicitor always advise a buyer? To make another check of the property, specifically to look for evidence of rights of way, persons in occupation and to check the ????????????.
physical condition of the property
470
471
If the seller of the property is a company, what sort of additional search should be carried out?
Company search (checking for liquidation / winding up proceedings)
472
If buyer is buying with a mortgage, what additional type of search will the buyer's solicitor carry out?
A bankruptcy search.
473
What type of developments are allowed under 'permitted developments'?
Small extensions, porches, conservation areas, porches, conservatories, putting up fences.
474
What type of permission is required for any development not covered by 'permitted developments'?
Express permission.
475
Within how long can the LA enforce building regulation breaches?
12 months in Wales, 10 years from completion of the work in England.
476
Within how long can breaches of planning permission be pursued by the LA?
10 years of the breach.
477
Why can't a client exchange quickly, when there's no chain but buying with a mortgage?
Searches would need to be carried out, which the bank providing the mortgage would require.
478
What details would need to be provided by a management company in a property with a lease?
Last 3 years service charges Details of any sinking fund Insurance policy Any upcoming changes / costs
479
If there are upcoming large payments to a management company, for instance for renovations, what might a seller want to do?
Be prepared to lower the price to accommodate.
480
What should a buyer do if there is a piece of land which doesn't appear to be included in the sale?
Raise enquiry of solicitors Check records at HMLR - INDEX MAP SEARCH Check whether land has its own number Enquire about what its used for
481
What are the conditions for adverse possession?
That the land must have been used WITHOUT permission, EXCLUSIVELY with intention to possess, and have actual possession.
482
What enquiries should be raised with regard to easements across the property being purchased?
What are they, what do they relate to? If sewerage pipe - where, need to know so as not to dig into it. Is there any contribution towards maintenance? Is it in a good state of repair? Is the seller prepared to sort any disrepair? Is it an informal easement that needs to be made formal? Will there be any cost implications to formalising a necessary easement?
483
If buying a piece of unregistered land annexed to the property, what can the buyer ask of the sellers?
That they register it before purchase. Whether they would include it in the sale.
484
What is the downside of asking the seller to register land?
The delay created.
485
What can be done when representing a buyer, and planning permission was not obtained?
Ask the seller to seek retrospective planning permission.
486
What can be done when representing a seller and a search has identified lack of planning permission?
Seek retrospective planning permission.
487
If representing a buyer and seller fails to get retrospective planning permission, what advice should be given?
Ascertain whether they would still go ahead with the purchase Advise that they themselves would be liable Ask if they could do without a particular purpose the permission was needed for Would they pull down the part that planning permission was not obtained for? They could ask for a reduction in price.
488
What is outline planning permission?
Permission as to the principle of the development, subject to any matters reserved.
489
If there are any reserved matters once an outline planning permission has been granted, within how long must a full application be obtained?
3 years.
490
What is detailed planning permission?
More thorough, and must be within 3 years of outline.
491
Within how long must works begin, once planning permission begins?
2 years, though this can be basic eg the foundations.
492
What can the developer be required to do if enforcement action is taken against building works?
The building could be pulled down or rebuilt.
493
What is the time limit for enforcement of alterations on a listed building?
None, can be at any time.
494
How does an official search with priority work for registered land?
It confers protection from any intervening interests for 30 days.
495
Within how long of a triggering event must a property have first registration?
2 months
496
If the buyer of a property is a company, then within how long must a mortgage be registered at companies house?
21 days.
497
Which of the three formulas (A, B, C) is the most common for exchange of contracts?
B
498
What is formula A in terms of exchange of contracts?
Seller's solicitor retains all paperwork, sends to buyer's solicitor upon exchange of contracts after having checked both parts are the same and inserts completion dates.
499
What is formula B in terms of exchange of contracts?
Each solicitor holds own client's signed contract. Solicitors confirm in a call that the versions are the same, and then send the signed part to each other.
500
What is formula C in terms of exchange of contracts?
Chain of transactions. Deposit monies make their way up the chain. Two calls made: one to confirm all ready, second to confirm the actual exchange.
501
If the completion date is more than 2 weeks following exchange, what should the buyer's solicitor do to protect the buyer's interest?
Register an estate contract (charge) on the register.
502
Ahead of the completion date, what should a solicitor contact the bank to confirm?
An updated redemption figure.
503
What is contained in the Information and Undertakings form? (4)
Details of accounts for transfer of funds Amount due on completion Location of keys Undertaking to pay off mortgage
504
What is contained in the Information and Undertakings form? (4) Details of ???????????????? Amount due on completion Location of keys Undertaking to pay off mortgage
accounts for transfer of funds
505
What is contained in the Information and Undertakings form? (4) Details of accounts for transfer of funds ???????????? on completion Location of keys Undertaking to pay off mortgage
Amount due
506
What is contained in the Information and Undertakings form? (4) Details of accounts for transfer of funds Amount due on completion Location of ?????? Undertaking to pay off mortgage
keys
507
What is contained in the Information and Undertakings form? (4) Details of accounts for transfer of funds Amount due on completion Location of keys Undertaking to ????????????
pay off mortgage
508
How does land transfer from a PR to a beneficiary?
Via an 'assent'
509
Leases - what is an engrossment?
A final lease document signed by landlord and tenant.
510
What is the process for establishing a priority period for unregistered land?
Full land charges search, which confers a 15 day priority period. Note: This contrasts with 30 days for registered via an official search with priority.
511
What happens if another registration is attempted during a priority period?
It cannot be registered until after the priority period ends. Normally the property would have been registered by that point, so it would fail.
512
What should a solicitor do if the search with priority highlights any changes at this late stage?
Require the other side to deal with them.
513
What steps happen during the actual completion? (3)
Buyer's solicitor sends completion money Seller's solicitor notifies buyer's solicitor IMMEDIATELY upon receipt. Seller's solicitor notifies keyholder.
514
By what method is completion normally carried out?
Post
515
During completion, which solicitor normally acts as agent?
Seller's solicitor acts as agent for buyer, dating and executing the transfer and other relevant documents for the buyer's solicitor.
516
What is the latest point at which written confirmation can be sent regarding completion having been successful?
The end of the working day following completion.
517
What steps happen during the actual completion? (3) Buyer's solicitor ????????????? Seller's solicitor notifies buyer's solicitor IMMEDIATELY upon receipt. Seller's solicitor notifies keyholder.
sends completion money
518
What steps happen during the actual completion? (3) Buyer's solicitor sends completion money ????????????????? upon receipt. Seller's solicitor notifies keyholder.
Seller's solicitor notifies buyer's solicitor IMMEDIATELY
519
What steps happen during the actual completion? (3) Buyer's solicitor sends completion money Seller's solicitor notifies buyer's solicitor IMMEDIATELY upon receipt. Seller's solicitor ????????????
notifies keyholder.
520
Within how long must first registration take place following completion?
2 months
521
What must the solicitor do regarding a new leasehold for more than 7 years?
Register the lease as a new title at HMLR
522
SDLT: Within how long of completion is SDLT required to be paid?
14 days
523
SDLT: What did the NRB return to in March 2025?
£125,000
524
SDLT: After the NRB of £125k, what percentage is SDLT calculated at?
2%
525
SDLT: What is the additional percentage paid where the property being purchase is NOT a primary residence?
3% for EACH band.
526
SDLT: What is the effect of the NRB when buying a second home?
There isn't one, so the 3% increase means the first £125,000 in a second home is still liable for a 3% SDLT bill.
527
SDLT: What SDLT is paid on a new lease?
Either of both of the lease premium and the net present value of the total rent payable over the entire lease term.
528
SDLT: What is the difference between lease premium and net present value?
Lease premium is a sum of money paid upfront at the beginning of a lease. The net present value is the total amount payable over the lifetime of the lease.
529
What is a property buyer entitled to do if the any plan or statement in contract, or in the negotiation leading to the contract was misleading or accurate due to an error by the seller?
Buyer is entitled to claim damages to be put back into position as if property was as described. Buyer can ONLY rescind contract if:- Error or omission was fraudulent or reckless, -or- If the buyer took the property it would be substantially different in quality, quantity or tenure from what was expected, to their prejudice.
530
Under what conditions can a buyer rescind contract?
Error or omission made by seller was fraudulent or reckless Property is substantially different in quality, quantity or tenure, to the buyer's prejudice.
531
How many working days before completion must a license to assign be forthcoming for a lease?
3 working days
532
What can an innocent party do if completion is later than 2pm on the designated day?
Claim damages and interest
533
Does a delay beyond 2pm on completion day give the innocent party a right to rescind?
No
534
How is interest calculated on a late completion?
Purchase price + contest, less any deposit. Rate applied between completion date and actual completion date.
535
Where the late payment is from a buyer who is currently the seller's tenant, what happens instead of compensation?
Continue to take rental income.
536
Under what conditions can a party serve a notice to complete?
Party must be ready willing and able
537
When a notice to complete has been served, within how long must completion take place?
Defaulting party has 10 working days to complete, EXCLUDING day of service.
538
What options does the buyer have if the seller does not complete within 10 days of notice to complete? (3)
Rescind Claim deposit money back with interest at the contract rate, AND Claim damages (as far as is possible) to put buyer in position they would have been if seller had performed duty - giving credit for any reclaimed deposit).
539
What options does the buyer have if the seller does not complete within 10 days of notice to complete? (3) ?????????? Claim deposit money back with interest at the contract rate, AND Claim damages (as far as is possible) to put buyer in position they would have been if seller had performed duty - giving credit for any reclaimed deposit).
Rescind
540
What options does the buyer have if the seller does not complete within 10 days of notice to complete? (3) Rescind Claim ????????????????????, AND Claim damages (as far as is possible) to put buyer in position they would have been if seller had performed duty - giving credit for any reclaimed deposit).
deposit money back with interest at the contract rate
541
What options does the buyer have if the seller does not complete within 10 days of notice to complete? (3) Rescind Claim deposit money back with interest at the contract rate, AND ?????????????????????? if seller had performed duty - giving credit for any reclaimed deposit).
Claim damages (as far as is possible) to put buyer in position they would have been
542
What options does the seller have if the buyer does not complete within 10 days of notice to complete? (4)
Rescind Retain deposit Resell property, AND Claim damages (difference between contract price and price resold out, taking into account the retained deposit)
543
What options does the seller have if the buyer does not complete within 10 days of notice to complete? (4) ?????????? Retain deposit Resell property, AND Claim damages (difference between contract price and price resold out, taking into account the retained deposit)
Rescind
544
What options does the seller have if the buyer does not complete within 10 days of notice to complete? (4) Rescind ??????????? Resell property, AND Claim damages (difference between contract price and price resold out, taking into account the retained deposit)
Retain deposit
545
What options does the seller have if the buyer does not complete within 10 days of notice to complete? (4) Rescind Retain deposit ?????????, AND Claim damages (difference between contract price and price resold out, taking into account the retained deposit)
Resell property
546
What options does the seller have if the buyer does not complete within 10 days of notice to complete? (4) Rescind Retain deposit Resell property, AND Claim damages (????????????????????)
(difference between contract price and price resold out, taking into account the retained deposit)
547
What options does the seller have if the buyer does not complete within 10 days of notice to complete, BUT paid less than a 10% deposit?
The buyer must additionally pay the seller the difference between what they paid, and 10% of the purchase price.
548
Other than financial considerations, what other option does the innocent party have in light of the fact that property is considered unique?
Applying for specific performance.
549
What options are available for buyer AFTER completion?
Not many, because the contract merged with the deed and therefore are no longer actionable, however:- Buyer can sue for breach of title guarantee or damages for misrepresentation (no matter whether fraudulent, reckless of innocent).
550
What is unique about commercial leases of less than 6 months?
Security of tenure does not apply.
551
What is security of tenure in a commercial lease?
Tenant has the right to stay in leased premises for additional term unless landlord opts for one of the statutory methods to terminate lease.
552
Under what three conditions can a landlord and tenant CONTRACT OUT of security of tenure?
i. Health warning notice served on potential tenant at least 14 days prior to completion of the lease ii. Tenant signs a declaration confirming they have seen health warning and opted out. iii. Lease must reference health warning, tenants declaration, and agreement to opt out.
553
Under what three conditions can a landlord and tenant CONTRACT OUT of security of tenure? i. ???????????? served on potential tenant at least 14 days prior to completion of the lease ii. Tenant signs a declaration confirming they have seen health warning and opted out. iii. Lease must reference health warning, tenants declaration, and agreement to opt out.
Health warning notice
554
Under what three conditions can a landlord and tenant CONTRACT OUT of security of tenure? i. Health warning notice served on potential tenant at least 14 days prior to completion of the lease ii. Tenant signs ?????????????????????????. iii. Lease must reference health warning, tenants declaration, and agreement to opt out.
a declaration confirming they have seen health warning and opted out
555
Under what three conditions can a landlord and tenant CONTRACT OUT of security of tenure? i. Health warning notice served on potential tenant at least 14 days prior to completion of the lease ii. Tenant signs a declaration confirming they have seen health warning and opted out. iii. Lease must reference ???????????????, ????????????? and agreement to opt out.
health warning, tenants declaration
556
Within what time period should a s25 or s26 notice be served?
6-12 months from the end of the tenancy period.
557
What is a s25 notice?
Landlord requires premises back at end of term, or wishes to enter into a new lease with same tenant.
558
What is a s26 notice?
Tenant requires new lease.
559
What are the statutory grounds in which a landlord can file for a s25 notice? (5)
1. Breach of obligation (pay rent, repair, or other substantial breach) 2. Landlord requires WHOLE property for subsequent letting. 3. Availability of suitable alternative accommodation 4. Landlord intends to demolish or reconstruct premises 5. Landlord intends to occupy.
560
What are the statutory grounds in which a landlord can file for a s25 notice? (5) 1. ??????????????? (pay rent, repair, or other substantial breach) [Discretionary if taken to court] 2. Landlord requires WHOLE property for subsequent letting. [Discretionary if taken to court] [Compensation possible] 3. Availability of suitable alternative accommodation 4. Landlord intends to demolish or reconstruct and cannot do with tenant in occupation [Compensation possible] 5. Landlord intends to occupy. [Compensation possible]
Breach of obligation
561
What are the statutory grounds in which a landlord can file for a s25 notice? (5) 1. Breach of obligation (pay rent, repair, or other substantial breach) [Discretionary if taken to court] 2. Landlord ???????????? for subsequent letting. [Discretionary if taken to court] [Compensation possible] 3. Availability of suitable alternative accommodation 4. Landlord intends to demolish or reconstruct and cannot do with tenant in occupation [Compensation possible] 5. Landlord intends to occupy. [Compensation possible]
requires WHOLE property
562
What are the statutory grounds in which a landlord can file for a s25 notice? (5) 1. Breach of obligation (pay rent, repair, or other substantial breach) [Discretionary if taken to court] 2. Landlord requires WHOLE property for subsequent letting. [Discretionary if taken to court] [Compensation possible] 3. Availability of ??????????????? 4. Landlord intends to demolish or reconstruct and cannot do with tenant in occupation [Compensation possible] 5. Landlord intends to occupy. [Compensation possible]
suitable alternative accommodation
563
What are the statutory grounds in which a landlord can file for a s25 notice? (5) 1. Breach of obligation (pay rent, repair, or other substantial breach) [Discretionary if taken to court] 2. Landlord requires WHOLE property for subsequent letting. [Discretionary if taken to court] [Compensation possible] 3. Availability of suitable alternative accommodation 4. Landlord intends to ???????????????[Compensation possible] 5. Landlord intends to occupy. [Compensation possible]
demolish or reconstruct and cannot do with tenant in occupation
564
What are the statutory grounds in which a landlord can file for a s25 notice? (5) 1. Breach of obligation (pay rent, repair, or other substantial breach) [Discretionary if taken to court] 2. Landlord requires WHOLE property for subsequent letting. [Discretionary if taken to court] [Compensation possible] 3. Availability of suitable alternative accommodation 4. Landlord intends to demolish or reconstruct and cannot do with tenant in occupation [Compensation possible] 5. Landlord intends to ???????????? [Compensation possible]
occupy.
565
Which of the 5 statutory grounds for a s25 notice attract compensation for the tenant?
Landlord requires whole property for subsequent letting Landlord intends to demolish or reconstruct Landlord intends to occupy
566
Can a s25 notice be served where the parties have opted out of security of tenure?
Yes, but it wouldn't be necessary as the tenant could be evicted anyway.
567
What is the process for a tenant serving a s26 notice?
Must do so 6-12 months prior to lease term expiring. Landlord then has 2 months in which to inform whether they intend to oppose the request If unwilling to issue new lease then must cite statutory grounds
568
Under the compensatory grounds of requiring the whole property (either for self or a new letting) or to demolish / reconstruct the premises, what level of compensation is the tenant entitled to?
The normal rateable value (set by the government). If the tenant has been there for 14+ years then it is double the rateable value.
569
What happens if the parties can't agree on the new lease?
The court can set a new lease, to a maximum term of 15 years.
570
Capacity: What is the test?
That the person has mental capacity to make A will, but also THIS particular will. Must have an awareness of what sorts of things are given in a will, and also some understanding of their estate.
571
What are the rules in s9 Wills Act 1837 with regard to executing a valid will?
A will must be in writing, signed by the testator (or someone in their presence and at their direction), and acknowledged or signed in the presence of two or more witnesses. These witnesses must also sign the will in the testator's presence.
572
Do the two (or more) witnesses need to sign in the presence of each other?
No, only in the presence of the testator.
573
Does the testator need to sign?
Yes, but they can have someone do it for them under their direction.
574
What is the general rule for presumption of capacity?
It is presumed. Any challenge to this needs to be shown by the person making the challenge.
575
What can a blind testator do with regard to capacity?
Use the attestation clause to detail how the will was formed, read and understood by the testator.
576
Is a will valid if the testator had capacity at the time but has since lost capacity?
Yes.
577
Does a will need an attestation clause?
It's not mandatory but very helpful.
578
Under what circumstances can a testator give a gift to the solicitor?
The solicitor should refuse, unless the testator took independent legal advice.
579
In order to challenge the validity of the will we think of FFFU. What does this mean?
Force Fear Fraud Undue influence
580
What is undue influence within the context of making a will?
More than mere persuasion overpowered the testators volition.
581
What happens if it is found that a will *was* invalid due to FFFU?
It will be dealt with via the intestacy rules.
582
Force or Fear can also sometimes be called what?
Duress.
583
Is a mark or partial signature a valid signature?
It can be, but best to check the attestation clause.
584
Must the signature be at the end of a will?
Traditionally it is, but it's not essential.
585
Can a witness sign for the testator?
Only if directed to do so.
586
What is the standard wording for an attestation clause?
Signed by the testator in our presence and then by us in his / hers.
587
What happens if there is no attestation clause?
Evidence must be offered as to how the will came to be executed.
588
Can a will identifying another document become part of the will?
Only if it exists at the time of the date of the will.
589
Can a future intention to make a list, schedule or memorandum be included in a will?
No.
590
How can alterations be made to a will?
By using the same witnessing requirements as before. Or, can be via a codicil, which is a separate document referring to a will.
591
Up until when can a will be revoked?
Any time before death.
592
What is the effect on marriage of a will?
It is revoked entirely, unless written in anticipation of the marriage to a named individual.
593
What is the effect of divorce on a will?
The former spouse is treated as if died, but the rest of the will remains as written.
594
Does the testator have to have destroyed the will themself for it to count as revoked?
No, it can be under their instruction, in their presence.
595
What is the effect on accidentally destroying the will?
Nothing. For revocation to be effective the testator must additionally intend to destroy the will.
596
If a will is found mutilated after death, is it presumed revoked?
Yes, unless evidence can be shown to the contrary.
597
What is the effect on a will of knowledge that it had been destroyed with the intent of making a new one (but ended up dying first).?
It *might* be given effect.
598
Where a couple make mutual wills, can the second to die still revoke their will?
Yes, but a constructive trust will arise in favour of any beneficiaries harmed by the change.
599
Unless the will states otherwise, WHEN are gifts intended to take effect?
Immediately on death. This is important because it refers to the financial situation of the testator at that precise point.
600
If a will states 'a BMW car', what is the effect?
A BMW car will need to be purchased (if funds suffice)
601
If a will states 'my jewellery collection', what passes?
Everything in the jewellery collection at the precise time of death.
602
If a will states 'my car' does this mean whatever car was in the possession of the testator at time of death?
No, that means the car at the time of making the will. This is an exception to the general rule that property is considered at the precise time of death.
603
What is an ademption / to adeem?
The gift fails because the item is no longer available
604
If shares split and there are now twice as many as at the time of writing the will, how many are given?
All of them, depending on the wording, because it is at the time of death.
605
If shares in a company are replaced because a company bought out the company the shares belonged to, what is the effect of those shares?
Those will adeem as they are no longer the specific gift intended.
606
What is a pecuniary legacy?
A gift of cash
607
What is a demonstrative legacy?
Where the will states where the money comes from eg: the cash in my HSBC account.
608
The residuary is what remains of the estate, after what?
specific, general and pecuniary gifts are distributed Admin costs and any debts are settled.
609
If the beneficiary of a gift dies before the testator, what happens to it?
It will lapse.
610
What is the difference between lapse and adeem?
Lapse is where the beneficiary died before the gift was given. Adeem is where the gift in the will is no longer in the testator's estate.
611
What is substitution?
Placing a name in the will to take an item / residuary if the first choice fails to survive the testator.
612
What happens to a gift if there is nobody to receive it?
It will fall into the residuary.
613
What happens to the residuary if the recipient has pre-deceased the testator?
It passes through the laws of intestacy. However, this will mean a grant of letters with will annexed, because a will existed, rather than a grant of letters.
614
What is the law of commorientes?
Where if two people die at the same time, the younger is deemed to have survived the elder.
615
What is special about gifts to issue of the testator?
They will automatically pass on to the next generation (in equal shares if more than one) if they pre-decease the testator.
616
If a class of beneficiaries is involved - all of whom have a contingent interest (for example upon the age of 21), upon which event will the class close?
The moment any member of the class satisfies the condition. The interests VESTS and is no longer contingent.
617
When a class closes, no new members can be added, but what happens to those who have not yet attained a vested interest (for example, a younger member of the class who still haven't reached age of 21)?
They will share the gift equally, contingent upon them reaching that age.
618
Under which conditions does intestacy arise?
Where there's no will Where a residuary is missing, or fails
619
Under the rules of intestacy, there is a special rule involving spouses, what is it?
That under intestacy they must survive the deceased by 28 days in order to benefit. It is to save the PR having to administer the estate twice.
620
If a person dies intestate and their spouse dies a week later, who inherits?
The next in line of the first to die, rather than the next in line of the spouse.
621
Intestacy: If a decedent is survived by a spouse AND issue, how is the estate distributed? (6)
Spouse takes all tangible moveable property (chattels) £322k Half the remaining property Children split the rest, contingent upon reaching 18. If child pre-deceases then own children can substitute Surviving spouse can require the matrimonial home transferred to them in satisfaction of their share.
622
Intestacy: If a decedent is survived by a spouse AND issue, how is the estate distributed? (6) Spouse takes all ????????????? £322k Half the remaining property Children split the rest, contingent upon reaching 18. If child pre-deceases then own children can substitute Surviving spouse can require the matrimonial home transferred to them in satisfaction of their share.
tangible moveable property (chattels)
623
Intestacy: If a decedent is survived by a spouse AND issue, how is the estate distributed? (6) Spouse takes all tangible moveable property (chattels) £??????k Half the remaining property Children split the rest, contingent upon reaching 18. If child pre-deceases then own children can substitute Surviving spouse can require the matrimonial home transferred to them in satisfaction of their share.
£322k
624
Intestacy: If a decedent is survived by a spouse AND issue, how is the estate distributed? (6) Spouse takes all tangible moveable property (chattels) £322k ??????? remaining property Children split the rest, contingent upon reaching 18. If child pre-deceases then own children can substitute Surviving spouse can require the matrimonial home transferred to them in satisfaction of their share.
Half the remaining property
625
Intestacy: If a decedent is survived by a spouse AND issue, how is the estate distributed? (6) Spouse takes all tangible moveable property (chattels) £322k Half the remaining property Children ??????????, contingent upon reaching 18. If child pre-deceases then own children can substitute Surviving spouse can require the matrimonial home transferred to them in satisfaction of their share.
split the rest (ie the other half)
626
Intestacy: If a decedent is survived by a spouse AND issue, how is the estate distributed? (6) Spouse takes all tangible moveable property (chattels) £322k Half the remaining property Children split the rest, contingent upon reaching 18. If child pre-deceases then ?????????????? Surviving spouse can require the matrimonial home transferred to them in satisfaction of their share.
own children can substitute
627
Intestacy: If a decedent is survived by a spouse AND issue, how is the estate distributed? (6) Spouse takes all tangible moveable property (chattels) £322k Half the remaining property Children split the rest, contingent upon reaching 18. If child pre-deceases then own children can substitute Surviving spouse can require ?????????????
the matrimonial home transferred to them in satisfaction of their share.
628
Intestacy: If there is no spouse, what is the priority of inheritance? (7)
Children Parents Full siblings Half siblings Grandparents Uncles / Aunts The crown
629
Intestacy: Are adopted children and step children counted as children of the decedent?
Adopted children are, step children are not.
630
Intestacy: If there is no spouse, what is the priority of inheritance? ????????? Parents Full siblings Half siblings Grandparents Uncles / Aunts The crown
Children
631
Intestacy: If there is no spouse, what is the priority of inheritance? Children ???????? Full siblings Half siblings Grandparents Uncles / Aunts The crown
Parents
632
Intestacy: If there is no spouse, what is the priority of inheritance? Children Parents Full siblings ????????? Grandparents Uncles / Aunts The crown
Half siblings
633
Intestacy: If there is no spouse, what is the priority of inheritance? Children Parents Full siblings Half siblings ?????????????? Uncles / Aunts The crown
Grandparents
634
What is unique about joint tenancy, when someone dies intestate?
Survivorship still applies, meaning that any joint property will still go to the other joint tenant.
635
What happens to life assurances when distributing an estate?
They pass outside of the will or intestacy, and go to the person named in the policy.
636
How are national savings handled with regard to a will or intestacy?
Separately. The beneficiary will be named in the policy.
637
How are trust funds dealt with with regard to a will or intestacy?
Completely separately, and to a named person in the trust document.
638
What happens when a testator appoints their spouse as their executor but they subsequently divorce?
The appointment will be ineffective because they will be treated as if they had died (as far as the will is concerned).
639
What constitutes intermeddling?
Any dealing with property Paying debts Continuing the deceased's business Anything that could alter the value of the estate
640
If someone has intermeddled, can they still renounce their role as executor?
No
641
What can an executor do, if they don't want to deal with the estate at this current time?
Have 'power reserved'
642
How must renunciations be recorded?
Notifying the probate registry.
643
Can an executor accept some parts of the role and not others?
No, it's an all or nothing position.
644
What is contentious probate?
Where there is a dispute as to whether the will is valid. NOT that someone is making a claim against a valid will.
645
How can a PR obtain £5k towards costs?
From national savings, premium bongs or building society, but this is at their discretion.
646
What does a PR need to sell chattels?
A death certificate
647
Is a grant of letters also known as a grant of probate?
No.
648
To where does a client apply for a grant of letters?
Probate registry.
649
What are the different types of Personal Representative? (2)
Executor - if there's a will Administrator - if there's no will
650
At the time of death, where there is a valid will with executor(s) named, to whom does the deceased's property vest?
The executor(s)
651
How many executors can there be?
1-4
652
What happens if there are no surviving executors?
Then someone will need to apply for a grant of letters of administration with will annexed.
653
When does letters of administration with will annexed get used?
When there are no surviving executors
654
What type of grant is used when there is a partial intestacy?
Grant of letters with will annexed.
655
What will happen to the distribution of a will where there is a partial intestacy?
It will be via letters of administration with will annexed. The parts of the will which remain valid will be distributed in accordance with the will, and any remaining parts will be dealt with according to the rules of intestacy.
656
Who can apply for letters of administration with will annexed?
1. The beneficiaries of the residuary estate 2. Creditors of the deceased 3. The beneficiary of any other legacy
657
Who can apply for letters of administration with will annexed? 1. The ????????????? 2. Creditors of the deceased 3. The beneficiary of any other legacy
beneficiaries of the residuary estate
658
Who can apply for letters of administration with will annexed? 1. The beneficiaries of the residuary estate 2. ???????????? of the deceased 3. The beneficiary of any other legacy
Creditors
659
Who can apply for letters of administration with will annexed? 1. The beneficiaries of the residuary estate 2. Creditors of the deceased 3. The beneficiary ????????????
of any other legacy
660
What is the difference between prescription and adverse possession?
Prescription is relevant as to a right over the property and can be gained after 20 years with no challenge, secrecy or permission. Adverse possession is to do with the ownership of the land, requiring 12 years (unregistered) or 10 years (registered).
661
What happens if the sole or last surviving PR dies before administration is completed?
A grant de bonis non (second grant of letters) will be made using the preferential list (beneficiaries, creditors, legacy beneficiary)
662
What happens if the sole or last surviving PR dies before administration is completed, but they have left an executor of their own?
Then that executor will take over, in a chain representation situation.
663
Can a minor be named as a PR?
Only if they're one of several PR's. Their parents serve, with power reserved until the minor is 18.
664
What must be paid before any grant of probate can be made?
Inheritance tax.
665
How can a potential PR pay inheritance tax before receiving a grant?
They can request funds are released from a deceaseds bank account to go directly to HMRC. This would count as inter-meddling.
666
How can a potential PR pay funeral expenses?
They can request a release of the deceased's bank funds.
667
Other than the release of funds from banks, how else can PRs raise funds to pay IHT?
Loans from beneficiaries Sell estate assets by providing death certificate.
668
What paperwork is required to submit a grant for probate? (4)
Copy of will (x2) Any codicils Affidavits / statement of truth Court fee.
669
What paperwork is required to submit a grant for probate? (4) ????????? (x2) Any codicils Affidavits / statement of truth Court fee.
Copy of will
670
What paperwork is required to submit a grant for probate? (4) Copy of will (x2) Any ?????????? Affidavits / statement of truth Court fee.
codicils
671
What paperwork is required to submit a grant for probate? (4) Copy of will (x2) Any codicils Affidavits / statement of truth Court ??????
fee.
672
What paperwork is required to submit a grant for probate? (4) Copy of will (x2) Any codicils ???????? / statement of truth Court fee.
Affidavits
673
What paperwork is required for a grant of letters of administration? (4)
Application form Will Any codicils Proof of identity
674
What paperwork is required for a grant of letters of administration? (4) ?????????? form Will Any codicils Proof of identity
Application
675
What paperwork is required for a grant of letters of administration? (4) Application form ?????? Any codicils Proof of identity
Will
676
What paperwork is required for a grant of letters of administration? (4) Application form Will Any ?????? Proof of identity
codicils
677
What paperwork is required for a grant of letters of administration? (4) Application form Will Any codicils Proof of ????????
identity
678
What must be sought if a will contains to attestation clause?
Affidavit of execution or statement of truth, from a witness, OR, someone else present (as a backup).
679
What is required if a will contains apparently unexecuted obliterations or changes?
An affidavit or statement of truth.
680
What should a beneficiary do if they suspect a lack of capacity
Lodge a caveat at the probate registry.
681
What is the effect of a caveat being lodged on the administration of a will?
It puts it on hold for up to 6 months. If unresolved in that time then a court application becomes necessary.
682
What needs to happen if someone with a prior right to administer a will isn't doing so?
Ask the probate registry to issue a citation to accept or refuse a grant.
683
Within how long must the IHT paperwork be filed with HMRC after the deceased's death?
12 months.
684
Within how long does interest begin to accumulate on the death estate?
6 months
685
What happens where co-owned land is left in a will?
The difficulty in selling land that is co-owned is taken in to account when being sold (discounted) unless the co-owner was the spouse.
686
A death estate of a UK domiciliary is exempt from IHT if it is below which amount?
£325k.
687
If someone dies whilst living abroad, how much of their estate consisting solely of cash and shares is exempt from IHT?
£150k.
688
How is IHT calculated on a jointly owned property when a spouse dies?
By a notional half share.
689
What is the test for the level of care and skill a PR must take when dealing with an estate?
They must exercise reasonable care and skill, taking into account any specialist knowledge they have.
690
In who's best interest must the PR act?
The beneficiaries.
691
Who is responsible for losses made for the estate resulting from a PR's breach of duty?
The PR
692
To what extent are PRs liable for another PR's breach of duty?
They're not, unless they were negligent in preventing the breach.
693
What should the PRs do with regard to choice of investments?
Take investment advice.
694
Can a PR mortgage or lease property?
Yes
695
Can a PR appropriate (use an estate asset to satisfy a legacy)?
Yes, if the beneficiary consents.
696
What expenses can a PR take for administering the estate?
They can indemnify themselves for expenses they properly incur.
697
May a PR carry on the deceased's sole business?
Only if provided for in the will, otherwise no.
698
What type of investments are suitable when managing a trust fund?
Those suitable for the trust, and diversified.
699
What happens if a PR does not diversify their investments with a trust fund?
They can be found liable.
700
If an estate includes a gift to a minor to receive income, what can the beneficiary ask for it to be used for in addition?
Their maintenance, education or benefit, at the trustee's decision.
701
What happens to interest earned in a trust fund when a beneficiary turns 18?
The interest at that point is added to the capital.
702
What happens to a trust fund's interest if a beneficiary's interest doesn't vest until later than 18?
It can be paid to them until they reach the contingent age.
703
Does a beneficiary have to have a vested interest in a trust fund in order to have funds advanced?
No, it can be vested or contingent.
704
If someone has an interest in a trust fund but someone else has a life interest, can funds be advanced?
Only if the person with the life interest consents.
705
What happens with regard to valid receipt for land, where there is only one PR?
One can give a valid receipt. It's just that where there are more they all must join for it. Same with shares.
706
Are PR's liable to unknown creditors as well as know?
Yes, unless complying with s27 Trustee Act 1925.
707
What are the key points of s27 Trustee Act 1925?
Placing a notice in the London Gazette and a local newspaper when intending to distribute property.
708
How long does a PR need to wait after posting a notice in the London Gazette and local newspaper, before distributing the property, in order to be protected from liability?
2 months.
709
Where a PR is aware of potential known claims, what actions do they have to protect themselves? (4)
Make payment into court and distribute the rest Gain indemnity from beneficiaries Seek a Benjamin order Purchase insurance against risk of missing claimant appearing.
710
Where a PR is aware of potential known claims, what actions do they have to protect themselves? (4) Make ???????????? and distribute the rest Gain indemnity from beneficiaries Seek a Benjamin order Purchase insurance against risk of missing claimant appearing.
payment into court
711
Where a PR is aware of potential known claims, what actions do they have to protect themselves? (4) Make payment into court and distribute the rest Gain ??????????? from beneficiaries Seek a Benjamin order Purchase insurance against risk of missing claimant appearing.
indemnity
712
Where a PR is aware of potential known claims, what actions do they have to protect themselves? (4) Make payment into court and distribute the rest Gain indemnity from beneficiaries Seek a ???????? order Purchase insurance against risk of missing claimant appearing.
Benjamin
713
Where a PR is aware of potential known claims, what actions do they have to protect themselves? (4) Make payment into court and distribute the rest Gain indemnity from beneficiaries Seek a Benjamin order ????????????? against risk of missing claimant appearing.
Purchase insurance
714
What is a Benjamin order?
Court order - It provides protection to the personal representatives from liability if the missing beneficiary later appears.
715
What is the effect of a Benjamin order on the potential beneficiary?
They are treated as if they had died.
716
Under which circumstances can a PR sell an item specified as a legacy?
Where the creditors demands are more than the death estate, as they will need to be paid first.
717
Which funds should be used to pay off unsecured creditors?
Any property undisposed of by the will, and then out of the residue (if any remaining).
718
What order of property should be used in the event that a will specifies debts should not be paid off by the residue?
Any property specifically identified as to be sold to pay debts Pecuniary legacies (abating proportionately if some left) Any other property's value, abating proportionately.
719
If a will states that a property is to be given free of mortgage, how will the mortgage be paid?
From the residue.
720
What is the priority for debts when an estate has insufficient funds to clear all of it's debt? (5)
Reasonable funeral & admin expenses Preferred debts Ordinary debts Interest Deferred debts
721
What is the priority order for debts when an estate has insufficient funds to clear all of it's debt? Reasonable ??????????? Preferred debts Ordinary debts Interest Deferred debts
funeral & admin expenses
722
What is the priority order for debts when an estate has insufficient funds to clear all of it's debt? Reasonable funeral & admin expenses ???????????? debts Ordinary debts Interest Deferred debts
Preferred - wages of deceased's employees in 4 months prior to death (max £800); HMRC.
723
What is the priority order for debts when an estate has insufficient funds to clear all of it's debt? Reasonable funeral & admin expenses Preferred debts ??????????? debts Interest Deferred debts
Ordinary (unsecured creditors)
724
What is the priority order for debts when an estate has insufficient funds to clear all of it's debt? Reasonable funeral & admin expenses Preferred debts Ordinary debts ?????????? Deferred debts
Interest (on debts)
725
What is the priority order for debts when an estate has insufficient funds to clear all of it's debt? Reasonable funeral & admin expenses Preferred debts Ordinary debts Interest ????????? debts
Deferred debts - loans from the deceased's spouse
726
What are preferred debts?
Wages of the deceased's employees in the 4 months prior to their death & HMRC
727
What is the maximum amount that can be paid to an employee for preferred debts when administering an estate?
£800
728
What counts as 'ordinary' debts for the purposes of administration of an estate?
Unsecured debts, other than preferred debts (for employees)
729
What are deferred debts, for the purposes of administering an estate?
Debts belonging to the deceased's spouse.
730
What are the possible consequence of a PR paying a lower category of debt when there are higher ranking debts that can't be paid as a result?
They can be found personally liable.
731
What must a named beneficiary do to avoid paying IHT and CGT which would be owed to them had they accepted the gift?
They must disclaim the inheritance, in writing.
732
What happens to the item if a specific legacy is disclaimed?
It falls in to the residue.
733
What happens if the beneficiary disclaims the residue?
The residue passes via the intestacy rules.
734
If a specific gift is disclaimed, can it still be accepted under the intestacy rules?
Yes.
735
Within how long must a variation for a gift be made?
2 years. Any such variation cannot be for monetary consideration.
736
What happens if a variation of gift isn't executed according to the rules set out?
Then the item is subject to IHT / a deemed disposal for CGT by the original beneficiary.
737
What is the legal effect of a successful variation of gift?
It is as if the deceased had left the property to the new beneficiary.
738
What are the two ways to decline a gift / part of a gift in a will?
Disclaim or variation
739
Wills - Gifts - Receipts. What must a PR obtain in exchange for the gift?
A valid receipt.
740
Wills - Gifts - Receipts. What must a PR obtain in exchange for delivery of a chattel?
A receipt
741
Wills - Gifts - Receipts. What must a PR obtain in exchange for delivery of a gift of shares? (3)
Stock transfer form Office copy of the grant Share certificate
742
Wills - Gifts - Receipts. What must a PR obtain in exchange for delivery of a gift of shares? ?????????? form Office copy of the grant Share certificate
Stock transfer
743
Wills - Gifts - Receipts. What must a PR obtain in exchange for delivery of a gift of shares? Stock transfer form Office copy of ??????? Share certificate
the grant
744
Wills - Gifts - Receipts. What must a PR obtain in exchange for delivery of a gift of shares? Stock transfer form Office copy of the grant ???????? certificate
Share
745
Wills - Gifts - Receipts. What must a PR obtain in exchange for a gift of land?
Assent in writing Beneficiary to register their interest at HMLR
746
Wills - Gift Who bears the cost of the transfer?
The beneficiary
747
Who is entitled to any income arising from property earned between the deceased's death and the time of the gift?
The beneficiary
748
Where are pecuniary gifts normally paid from?
The residue, unless the will specifies otherwise.
749
If no source for a pecuniary gift is stated in a will, and the estate has insufficient money, whereabouts in the priority list will the beneficiary of the gift be?
An ordinary / unsecured creditor.
750
What happens to multiple legacies where there isn't enough money in the estate
They will all abate proportionately
751
What is appropriation, when dealing with the administration of an estate?
The beneficiary asking the PR to use a particular asset to satisfy a pecuniary legacy.
752
What happens when there is a gift to a minor - and the minor can't therefore give a valid receipt?
The receipt is given by the minor's parents, to be held on trust until the minor turns 18, or simply not given at all.
753
In what circumstances may PRs charge for acting?
By agreement of all PRs, or if acting in a professional capacity.
754
What must PR's make in order to show the residuary beneficiaries what is available?
Estate accounts.
755
What must Beneficiaries do upon receiving estate accounts from the PRs?
Approve the accounts and indemnify the PRs.
756
What happens if the beneficiaries refuse to approve the accounts made by the PRs?
The PR can ask the court to approve, or can pay the beneficiaries share into the court.
757
At what triggering event does an assent take effect?
Immediately upon the testator's death, so is treated as being owned by the beneficiary from that point.
758
What requirements are there for an assent of land? (4)
Must be in writing Signed by PRs Name of the beneficiary. HMLR must be notified.
759
What requirements are there for an assent of land? Must be ??????? Signed by PRs Name of the beneficiary. HMLR must be notified.
in writing
760
What requirements are there for an assent of land? Must be in writing Signed by ????????? Name of the beneficiary. HMLR must be notified.
PRs
761
What requirements are there for an assent of land? Must be in writing Signed by PRs Name of ??????????? HMLR must be notified.
the beneficiary.
762
What requirements are there for an assent of land? Must be in writing Signed by PRs Name of the beneficiary. ??????? must be notified.
HMLR
763
What rights to beneficiaries have in the estate whilst it is being administered?
Only that they have the right to have the estate administered properly.
764
If beneficiaries bring an action against PRs, what is the test to decide whether or not the PR is liable?
They are not liable if they acted honestly, reasonably and ought fairly to be excused.
765
They are not liable if they acted honestly, reasonably and ought fairly to be excused. What is this the test for?
That a PR is not liable for the action in question.
766
What type of accounts are expected to be produced by PRs in relation to the estate? (3)
Income account Capital account Distribution account
767
What is the act that sets out the possible claims by people who felt that reasonable provision has not been made for them in a will?
Inheritance (provision for family and dependants act) 1975.
768
What is the main provision of Inheritance (provision for family and dependants act) 1975?
That the terms of will can be set aside or varied, because reasonable financial provision has not been made for them
769
Within how long should a claim under Inheritance (provision for family and dependants act) 1975 be made?
Within 6 months of issue of grant to PRs (though this can be later, with leave of the court).
770
Why should PRs wait 6 months before distributing an estate?
Because at that point there is no longer any possibility of an application under Inheritance (provision for family and dependants act) 1975.
771
Who can bring a claim under Inheritance (provision for family and dependants act) 1975?
Spouse or civil partner Ex spouse, not remarried Child, or person treated as a child Person maintained by the deceased Person who cohabited with deceased for 2+ years prior to death
772
Under what conditions are any adult children unlikely to be successful in an application under Inheritance (provision for family and dependants act) 1975?
If they are able bodied and in employment.
773
What is the test the courts will use for a claim under the Inheritance (provision for family and dependants act) 1975?
1. Has the will or intestacy rules failed to make REASONABLE financial provision for the applicant 2. If so – what would be the provision? a. For spouse – As would be reasonable in ALL THE CIRCUMSTANCES whether or not required for maintenance. b. For ALL OTHERS – financial need to live comfortably (OBJECTIVE test). c. Reasons deceased gave for not providing.
774
What is the test the courts will use for a claim under the Inheritance (provision for family and dependants act) 1975? (5 points) 1. Has the will or intestacy rules failed to make ???????????????? for the applicant 2. If so – what would be the provision? a. For spouse – As would be reasonable in ALL THE CIRCUMSTANCES whether or not required for maintenance. b. For ALL OTHERS – financial need to live comfortably (OBJECTIVE test). c. Reasons deceased gave for not providing.
REASONABLE financial provision
775
What is the test the courts will use for a claim under the Inheritance (provision for family and dependants act) 1975? (5 points) 1. Has the will or intestacy rules failed to make REASONABLE financial provision for the applicant 2. If so – ???????????????????? a. For spouse – As would be reasonable in ALL THE CIRCUMSTANCES whether or not required for maintenance. b. For ALL OTHERS – financial need to live comfortably (OBJECTIVE test). c. Reasons deceased gave for not providing.
what would be the provision?
776
What is the test the courts will use for a claim under the Inheritance (provision for family and dependants act) 1975? (5 points) 1. Has the will or intestacy rules failed to make REASONABLE financial provision for the applicant 2. If so – what would be the provision? a. For spouse – ?????????????? whether or not required for maintenance. b. For ALL OTHERS – financial need to live comfortably (OBJECTIVE test). c. Reasons deceased gave for not providing.
As would be reasonable in ALL THE CIRCUMSTANCES
777
What is the test the courts will use for a claim under the Inheritance (provision for family and dependants act) 1975? (5 points) 1. Has the will or intestacy rules failed to make REASONABLE financial provision for the applicant 2. If so – what would be the provision? a. For spouse – As would be reasonable in ALL THE CIRCUMSTANCES whether or not required for maintenance. b. For ALL OTHERS – ???????????? (OBJECTIVE test). c. Reasons deceased gave for not providing.
financial need to live comfortably
778
What is the test the courts will use for a claim under the Inheritance (provision for family and dependants act) 1975? (5 points) 1. Has the will or intestacy rules failed to make REASONABLE financial provision for the applicant 2. If so – what would be the provision? a. For spouse – As would be reasonable in ALL THE CIRCUMSTANCES whether or not required for maintenance. b. For ALL OTHERS – financial need to live comfortably (OBJECTIVE test). c. Reasons deceased gave ????????????
for not providing.
779
What factors are considered by the court in deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4)
Person's need Moral considerations Disabilities Age and duration of relationships
780
What orders are available to the court when deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4)
Transfer of property Lump sum (most common) Payment of income Settlement of property on trust
781
What factors are considered by the court in deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4) Person's ?????? Moral considerations Disabilities Age and duration of relationships
need
782
What factors are considered by the court in deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4) Person's need ???????? considerations Disabilities Age and duration of relationships
Moral
783
What factors are considered by the court in deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4) Person's need Moral considerations ??????? Age and duration of relationships
Disabilities
784
What factors are considered by the court in deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4) Person's need Moral considerations Disabilities ?????????????? relationships
Age and duration of
785
What orders are available to the court when deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4) ???????????? property Lump sum (most common) Payment of income Settlement of property on trust
Transfer of
786
What orders are available to the court when deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4) Transfer of property ??????????/ (most common) Payment of income Settlement of property on trust
Lump sum
787
What orders are available to the court when deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4) Transfer of property Lump sum (most common) Payment of ????????? Settlement of property on trust
income
788
What orders are available to the court when deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4) Transfer of property Lump sum (most common) Payment of income ???????????? on trust
Settlement of property
789
What are Potentially Exempt Transfers (PET)?
Lifetime transfers that are not immediately chargeable unless exceed current IHT nil rate band, and within 7 years of death
790
To what extent does IHT apply to those not domiciled in the UK?
Only to UK assets
791
Transfers made without any ___________ are disregarded for IHT?
Gratuitous intent
792
What is it about stocks that mean their value can fluctuate?
The fact that they may alter the percentage ownership conferred. The greater the ownership stake, the higher the value.
793
What is the related property rule?
Where property is more valuable when a spouse’s property is joined to it (ie a collection) - the higher value is used.
794
What four category of gifts are exempt from IHT?
Gifts to spouse (unless domiciled outside of UK) Gifts to charities £250 or less to anyone Weddings (up to a certain limit)
795
If a spouse is domiciled outside of the UK, can they be sent gifts free of IHT?
No. It would use some of the personal allowance of £325k.
796
What are the wedding gifts limits that would be free of IHT?
Parent - up to £5k Grandparent - up to £2.5k Spouse to spouse - up to £2.5k All others £1k.
797
What are the wedding gifts limits that would be free of IHT? Parent - up to ?????? Grandparent - up to £2.5k Spouse to spouse - up to £2.5k All others £1k.
£5k
798
What are the wedding gifts limits that would be free of IHT? Parent - up to £5k Grandparent - up to?????? Spouse to spouse - up to £2.5k All others £1k.
£2.5k
799
What are the wedding gifts limits that would be free of IHT? Parent - up to £5k Grandparent - up to £2.5k Spouse to spouse - up to ????? All others £1k.
£2.5k
800
What are the wedding gifts limits that would be free of IHT? Parent - up to £5k Grandparent - up to £2.5k Spouse to spouse - up to £2.5k All others ?????
£1k
801
Is a gift of £275 to a non related person, not at a wedding, subject to IHT?
Yes, the whole of this would be subject to IHT. If it was £250 none of it would. The £250 limit is all or nothing.
802
If a family member gave a gift of more than their IHT free amount (eg £6k from parents where the limit is £5k) would the whole of the £6k be subject to IHT?
No, only £1k of it would. Wedding gifts, unlike non wedding gifts are NOT all or nothing gifts.
803
What is the annual amount exempt from IHT that each person has?
£3k.
804
How long can each person's annual exempt amount from IHT carry over?
By one year, to a total of 2 (£6k).
805
When is IHT payable for lifetime transfers (Chargeable lifetime transfers - CLT)?
At the time of the gift.
806
What type of transfer is a gift to a trust or company?
Chargeable lifetime transfers (CLT)
807
What exemption would typically be used in relation to a chargeable lifetime transfer
Annual exempt amount (£3k per year).
808
How is the IHT payable calculated when an annual exemption is used against a chargeable lifetime transfer? Let's say the CLT is for £10k.
It's £7k gross, then 40% of this, so the IHT payable would be £2800. This is because the annual exempt amount is taken off the gross amount first (similar to child maintenance). However, the personal nil rate band will mean that most people still won't have to pay anything.
809
How is the IHT payable calculated when an annual exemption is used against a chargeable lifetime transfer? Let's say the CLT is for £100k, but the person making the transfer has the maximum available annual exemptions x2 (£6k)?
Take the £6k from the £100k, leaving £94k. 40% of £94k is £37,600 which would be how much IHT is payable. However, the personal nil rate band will mean that most people still won't have to pay anything.
810
If someone exceeds their Nil Rate Band (NRB) whilst alive, at what rate is inheritance tax paid?
20% - this is known as the lifetime rate.
811
Who pays any IHT due on a chargeable lifetime transfer, and at what amount?
Either the transferor (at 25%) or the transferee (at 20%)
812
What happens if someone dies within 7 years of making a CLT (note - not a PET)?
If an individual dies within 7 years of making a CLT, it will be brought into the IHT calculation and tax will be recalculated at the full rate. This is because they would have paid at the lifetime rate of 20%, rather than the death rate of 40%.
813
What is business relief?
Where if sole trade or partnership or transferring share in unlisted trading company, a rate of 100% exemption applies.
814
Which type of businesses attract a 100% exemption for IHT?
Sole trade or partnership or transferring share in unlisted trading company.
815
Which types of businesses attract of 50% exemption for IHT?
Shares transferred in a quoted trading company if the donor has more than 50% of the voting shares. -or- Donor transfers land, buildings, plant or machinery used by a partnership or company.
816
What are the conditions for Agricultural relief to apply?
100% (for now anyway) provided the land has been owned for the last 2 years, or rented for 7.
817
What happens to the annual exempt amount for IHT upon death?
It is no longer available at all. Instead, the NRB is reduced by the amount of PETs and CLTs made within the last 7 years.
818
What must be taken into account from the 7 years prior to death in terms of IHT?
PETs and CLTs
819
Is the IHT payable when transferring a home from spouse to spouse?
No, because there is no IHT chargeable at all on this. No NRB is used either.
820
Is IHT payable if you give your house to your children?
Yes, after any NRB has been used.
821
If more than 10% of the 'baseline' for IHT is given to charity, you get a reduced rate, but what is the baseline?
The baseline is what remains after deducting all reliefs, exemptions and NRB. So in other words, the amount that is about to be taxed for IHT.
822
What reduction is given for giving more than 10% of the baseline away to charity?
The rate reduces from 40% to 36%
823
Estates over what size suffer tapering to the residence NRB?
£2M.
824
What is the residence NRB?
£175k.
825
How does tapering work to estate over £2M?
For each £2 over the £2M limit, £1 is reduced from the Residence NRB (note - not the personal NRB).
826
If an estate is worth £2.5M, involving property, how much IHT would be paid (assume here that there's no personal NRB in play)?
£1M. There would be no residence NRB left, because at £2,350,000 tapering would have eradicated the NRB by £1 for each £2 over.
827
What is the down-sizing add on?
It's an extra bit of NRB for those who downsized their homes during life. The downsizing addition is normally the same as the RNRB lost when the former home was removed from the estate.
828
What is quick succession relief?
It means where the person who inherited dies within 5 after the inheritance, less IHT is due. It tapers by 20% for each year survived.
829
How much quick succession relief would there be for someone who inherited and died between 1 and 2 years later?
80% relief
830
How much quick succession relief would there be for someone who inherited and died between 4 and 5 years later?
20% relief
831
Gifts with reservation of benefit are easy to spot, but if found are they counted as CLTs or PETs?
PETs.
832
When is IHT payable?
6 months from the end of the month deceased.
833
From which fund is IHT paid?
The residue, unless the will states otherwise.
834
Who is responsible for paying the PET, where a property has found to have attracted reservation of benefit?
The person being 'given' the property.
835
Income tax Which period of the year preceding death must the PR prepare accounts for?
The financial year, so from 6th April to date of death, and pay the income tax due.
836
Income tax By when must PRs file the tax return for the deceased?
31st Jan, as normal.
837
Income tax Instead of filing self assessments, what do the PRs file for the deceaseds final year?
Income tax calculation CGT calculation A single total liability figure
838
What rate are non savings income, and interest taxed at?
20%
839
What rate are dividends taxed at?
8.75% and there are no tax free allowances anymore.
840
If the PR takes out a loan to pay IHT, is the interest deductible against income of the estate?
Yes.
841
What is probate value?
Market value at time of death.
842
What annual exemptions do PRs have against CGT?
£3k per year, for the first three years. None after.
843
Can excess losses of an estate be offset against gains of a future year?
Yes.
844
What are the rates of CGT for gains made by PRs?
20% general gains 28% residential gains
845
Do gifts made by PRs to beneficiaries attract CGT?
No.
846
What is the difference between express trusts and implied trusts?
847
848

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