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Summary LPC Advanced Commercial Property Notes (DISTINCTION) 2022 $30.31   Add to cart

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Summary LPC Advanced Commercial Property Notes (DISTINCTION) 2022

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DISTINCTION level notes- I have consolidated each relevant SGS into concise tables which helped me navigate my way through the content in the exam. These notes will help you understand the content given in SGS' and should act as a helpful revision tool. I have included as much detail as I thought w...

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  • September 1, 2022
  • 62
  • 2022/2023
  • Summary
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By: ifrahhussein • 1 year ago

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By: NotesbyLiv • 1 year ago

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By: shanomi • 1 year ago

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Advanced Commercial
Property Notes

, SGS 1- Acquisition and Development: initial considerations
Learning outcomes 1. draft the title section of a report on title; and
2. advise your client in relation to development issues
Development issues
Title issues  check property details are correct by checking property register and
proprietorship register
 title plan shows the extent of the property and boundaries
 check the following:
o Address
o Title number
o Title absolute? (best class of title)
o Who is the registered owner? (include this in answer)

Excepted mines and minerals
 Does a third party own the mines and minerals?
 Could amount to trespass if you damage/remove or interfere with mines
and minerals; liability for damages/ injunction to stop work

Advice
 Search index Map to identify owner and identify whether land is registered
or unregistered
 Ask seller if right exercised in past
 Buyer should carry out survey to identify scope of mine sand minerals
 Could purchase rights form buyer but this is time consuming and expensive
 Could obtain insurance (do not approach PWB if doing this)
Restrictive  Run with the land and bind successors in title
covenants  What restrictive covenants are there listed in the charges register?
o Any continuing past breaches (buyer will be liable)
o Proposed future breaches (buyer will be liable)

Past breaches
1) RC insurance: the older the breach the cheaper the premium
2) Retrospective consent from pwb: may be difficult to trace pwb
3) Upper Tribunal (Land Chamber): application under s84 LPA for discharge
or modification of RC – costly and time consuming and no guarantee of
success

Future breaches
 Same as above but insurance may be prohibitively expensive

Advice
 Ask seller to confirm which land benefits from RC if there is any ambiguity
 Ask seller if they have had any issues with RC and have the rights ever
been exercised
 Find out when covenants were breached and if consent from pwb has been
obtained
Positive covenants  Do not run with the land and do not bind successors in title (planning
obligations are an exception to this rule)
 If there is an indemnity covenant in proprietorship register the seller will
require the buyer to enter into one
 Chain of indemnity covenants SCPC 7.6.5
 Buyer will have continuing obligation to perform PC
Rights for the Right of way
benefit of third  Check the extent of the right of way (eg: at all times, vehicles etc)
parties  Check who owns the right
 If owned by seller, ensure the seller enters a deed of release in respect of
these rights

,  Seller may need temporary rights of access during the works and/or need to
be re-granted new rights over the new roads once completed

Rights of services
 Water, gas, electricity, oil etc
 This right is subject to the benefitting land owner paying a proportion of cost
of maintenance and repair of conduits (channel for water)
 Benefitting landowner may also enter property on written notice to construct
media for the supply of services

Advice
 Ask seller’s solicitor to confirm who has the benefit of the rights
 Ask seller whether rights have been exercised (to their knowledge)
 Does the continued exercise of these rights affect the development plans?
 If so, consider getting a release of these rights from the benefitting
landowner (although this will have time/cost implications)
Lease  Are there any leases? When are they due to expire?
 A lease may be contracted out of LTA 1954 BUT if T is still in occupation
they may have security of tenure and be entitled to a new lease – need to
check this
 If this is the case, LL will have to serve s25 notice to terminate the lease
relying on ground (f) as there is an intention to redevelop
 If the contractual expiry date has passed this can be done immediately
 Ground f is a compensatory ground which would need to be factored into
the development cost

Advice
 Ask seller if tenant is still in occupation
Charges/other  Is there a pre-emption agreement in force?
 If it is still in force then the seller is required to sell the property to whoever
is on the register

Advice
 Ask seller’s solicitors to provide a copy of the agreement
 Confirm that the agreement is no longer enforceable
 If not enforceable- notice of the agreement should be removed from the
register

Right to light  Are there buildings next door to site?
 Will anyone’s right to light be infringed by your client’s proposed
development?

Acquiring a right to light

Express deed
 Check property register of neighbour who is benefitting from the right to
light
 Check charges register of client to see if there is a burden of the right to
light ie: neighbour has right to light

Prescription
 uninterrupted enjoyment of right to light for 20 years (Prescription Act 1832)
 how long has the neighbouring building been there?
 Check to see if the amount of time they claim to be there is correct

Light obstruction notice (LON)
 Where there is no deed expressly granting right to light then serve a LON
under the Rights of Light Act 1959

,  LON needs to be registered as a land charge to prevent right to light being
acquired by prescription
 Must be in place for 1 year and defeats dominant land owner’s ability to
obtain right to light by prescription
 If LON registered after this period, right owner can object to the LON
 If no objections received in this time, there is deemed acquiescence to the
obstruction- right to light by prescription defeated

Physically obstruct RtL
 Interrupts the flow of light
 Interrupts continuous 20 year period for prescription

Lost modern grant
 Right to light has been exercised for 20 years- no need to count back 20
years from date of challenging the right unlike prescription
 Presumption that the document containing the grant has been lost
 LON would not prevent a claim for RtL in this circumstance

Consequences
 Regan v Paul Properties Ltd: If RoL are infringed, court can order an
injunction rather than damages
 HKRUK II (CHC) v Heaney: Developer had to remove 2 floors even
though one had already been let to a TT
 Coventry (t/a RDC Promotions) v Lawrence: discretion should be
exercised and it may not be appropriate where the developer acted fairly
 Ottercroft Ltd v Scandia Care Ltd: mandatory injunction granted, rather
than damages, where the developer breached undertaking

Advice
1. Negotiate deed of release
2. Use LON procedure/ physically obstruct
3. Redesigning development
4. Take out RtL insurance
5. Buying the property with the RtL
6. With requisite involvement of ‘specified authority’ (s205 HPA2016) using
the power to override easements and other rights under s203 HPA –
removes risk of injunction, PWB to RtL is entitled to compensation (S204
HPA)
 Each of these solutions has a cost implication so the solution will depend
on the cost of the development
Reconfiguration of  Client may need to divert public highway to accommodate planned
roads development
 Check CON 29 to see if existing roads within boundaries of the property are
publicly adopted highway
o If they are then cant reconfigure road (as public right of way over
these roads unless a stopping up order is obtained
o If not publicly adopted then don’t need to get stopping up order

 For stopping up order
 Comply with s116 Highways Act 1980 or Part X TCPA 1990
 These orders are time consuming, costly as notices need to be served on
various parties
 Possibility objections will further delay process + orders challenged

Advice
 Make sale contract conditional on stopping up order being obtained and any
time limits for challenge have expired

Adoption of private roads

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