Title Investigation, Searches and Standard Enquiries

Question 1

Where a property has the benefit of a right of way over another piece of land, what three things should be borne in mind and discussed with the buyer client?

Answer 1

1. Whether or not the right of way is adequate (are there any restrictions?);
2. What the maintenance obligations or costs are;
3. Whether or not the right has been correctly registered on the burdened land

Question 2

What can a buyer client do if a right of way/ easement is not adequate for their use of the land?

Answer 2

May be possible to negotiate a deed of variation with the owner of the servient land

Question 3

How is it possible to advise your buyer client on how much they will be expected to pay as a ‘fair proportion’ of the costs of repair and maintenance?

Answer 3

Raise a query with the seller for details of payments made in the last three years (how much historically has been paid)
If there has been no maintenance costs paid previously, it may be appropriate to ask the seller how a ‘fair proportion’ would be calculated and whether any maintenance works are planned/ required given the current state of the land

Question 4

How will the burden of a right of way on the servient piece of land be registered?

Answer 4

It will be registered as against that particular title in the Charges Register on the official copies

Question 5

Where the servient land is unregistered, how is it possible to check that the burden has been recorded?

Answer 5

Check to see whether a caution against first registration has been entered against it

Question 6

What is the general rule regarding positive covenants and what are the exceptions to this rule?

Answer 6

General rule: the burden of positive covenants does not run with the land - so subsequent purchasers of the land will not be bound by the terms of the covenant. However, if the Proprietorship Register shows that the seller entered into an indemnity covenant when they bought the property, the buyer client will also be expected to give a similar indemnity covenant to the seller - SCPC 7.6.5

Question 7

What is the position where the seller is in breach of their obligations under a positive covenant?

Answer 7

For remedial breaches, the buyer client can insist that the obligations under the positive covenant are observed before the property is sold, i.e. to put a fence into good repair.
Alternatively, the buyer client may negotiate a price reduction to cover the costs of fixing the fence

Question 8

What is the general rule regarding restrictive covenants?

Answer 8

General rule: Restrictive covenants run with the land and will be automatically binding on the buyer client, because they ‘touch and concern the land’: Tulk v Moxhay

Question 9

What are the buyer client’s options for continuing past breach of a restrictive covenant?

Answer 9

1) Insist that the seller buys restrictive covenant insurance at its expense against the possibility of the PWB bringing an action in the future
2) If not available - approach the PWB to obtain retrospective consent for the breach
3) As a last resort, it is possible to apply to the Upper Tribunal (Lands Chamber) to have the restrictive covenant removed or varied

Question 10

How are interests of persons in actual occupation dealt with before completion?

Answer 10

1) Ensure seller confirms that the sale will be with vacant possession, and
2) Ask the non-owning occupier to sign a document waiving any possible interest in the property and agreeing to vacate the property on or before completion