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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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Advanced Commercial Property
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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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