BPP University College Of Professional Studies Limited (BPP)
I completed the LPC (Legal Practice Course) at BPP University in 2017 with a 90% distinction. These detailed and condensed notes cover the entire Property Law and Practice module. I have covered every SGS and highlighted all the key statutory references. My friends at other universities, such as th...
BPP University College Of Professional Studies Limited (BPP)
Legal Practice Course
Property Law and Practice
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INVESTIGATING TITLE Optional searches
• 1. Companies search
8) COVENANTS
• 1) Covenant enforceable against buyer?
o Checks Seller company = solvent + authorised to sell ∴ no later issues when registering transfer of • 2) Continuing/past/future breaches? CPSE 4.2(f)
OFFICIAL COPIES *Check correct year throughout
ownership o Apply to facts: E.g. Covenant preventing using land for heavy industry ≠ issue if wants to open a shop
• “Search from date” = < 1 year old from completion date, otherwise misses recent entries
• 2. K16 bankruptcy search • 3) PWB? SIM search
• Title number matches contract + TR1?
• 3. CON29O Q22 Common land or village greens, e.g. parks • 4) PWB consent obtained? If yes = no breach
PROPERTY REGISTER o Public land in the area = may affect Buyer’s plans, e.g. public footpaths, rights of access/grazing • 5) If no, remedies? Depends on when breached + how old covenant is
• 1) Description of land matches contract + TR1? • 4. CON29M Coal Mining and Brine Search o Past old breach (> 50 years) = insurance
• 2) Freehold/leasehold o Subsistence risks § CPSE 5 If RC insurance obtained
• 2) Easements benefiting property = adequate for client’s needs? o Past/future uses of mining site § If not, Special Condition in contract to obtain insurance
• 3) Exclusions, e.g. mines, minerals = affects client? • 5. Phase I / Phase II Environmental Survey § Don’t inform PWB of breach
o If so, another owns the land below o If issue, apportion liability for clean-up / drop deal § S19(1) FSMA Requires authorization to advise insurance policies
o Warn client + confirm w/ surveyors if exclusions impact property’s valuation • 6. [Desktop Environmental Search on risk of flooding] Waterways search § Who pays?
o Liability for maintenance + flooding, ROW along riverbank, drainage/fishing rights, otherwise Buyer § Past breach: Seller pays
PROPRIETORSHIP REGISTER
buys subject to rights § Future breach: Buyer pays, b/c Seller unlikely to agree price reduction/pay premium
• Quality of title § If past + future breach =
• Identifies owner of property w/ name + address 1) DESCRIPTION OF LAND § 1. Single policy covering both + split premium /
• Restrictions on power to sell property / deal w/ the land § 2. Risk breaching covenant w/o insurance + hope PWB doesn’t enforce /
2) RIGHTS/EASEMENTS (right of way) *Most properties abut the public highway ≠ need ROW
• 1) Class of title = absolute? • CPSE 1.6 ROW? § 3. Don’t proceed w/ deal
o S9(2) LRA 2002 Registered w/ absolute title IF registrar thinks their title = such that a competent • 1. Adequate for client’s needs, otherwise landlocked o Past recent / future breach = seek PWB’s consent
professional adviser would advise a willing Buyer to accept o Foot/vehicles? o S84(1) LPA 1925 Apply to Lands Tribunal = power to discharge/modify RC *Only restrictive covenants
• 2) Seller in contract = registered proprietor? If not, who? o Certain times of day? § Obsolete / continuing RC impedes user of land / PWB’s act/omissions agree to discharge /
o Physically adequate: Size, location, construction, e.g. wide/strong enough for vehicles? doesn’t injure PWB
• 3) Seller = company? Check name + number on CH = matches contract *If Seller = individual, NO company search
• 4) Indemnity covenant? § Ask surveyor on its suitability Positive covenants
• 5) Restrictions? o If inadequate, Deed of Variation w/ servient owner for ££, otherwise drop deal • ≠ Run w/ the land, but indemnity covenant = personally bound
o Mortgage: (7 December 2016) RESTRICTION: Except under an order of the Registrar no disposition by the • 2. Maintenance: By who, how much, Seller’s previous cost? o If yes, chain of personal indemnity covenants which Seller will wish to continue
proprietors of the land is to be registered without the consent of the proprietors of the charge dated 6 November o If in disrepair, ask Seller to repair o If no, unenforceable ∴ no further action
2016 in favour of X Bank plc referred to in the Charges Register. o Charges Register: “Fair proportion”
• To ensure Buyer gives indemnity covenant on completion:
§ If buying part of land, requires lenders’ consent to sale, not sale of whole b/c mortgage discharged o Always ask: CPSE 3.2(f) If Seller paid maintenance costs *Last 3 years
o Incorporate into contract: SCS 4.6.4 / SCPC 6.6.4 Buyer enters indemnity = bound by covenants in
o TIC: “(Date) RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) o Ask Seller to ask lane owner: How to calculate ‘fair proportion’ + if maintenance works are planned
Charges Register
under which capital ££ arises is to be registered unless authorised by an order of the court” o Ask surveyor to check if maintenance is currently required. If so, advise Buyer on likely costs
o TR1 incl. indemnity covenant
CHARGES REGISTER • 3. Adopted/future adoption? • Check:
o Private roads can be adopted by local authority o Likely costs, e.g. maintenance
• 1) Easements burdening property = affects client?
o CON29 o Ask Seller if breached before + whether enforcement action taken. Find out current state of repair
• 2) Restrictive covenants = breached? affects client?
§ 2.1(a) Adopted public highways
• 3) Positive covenants = breached? Indemnity covenant?
§ If road ≠ mentioned, must be a private ROW
• 4) Mortgages = discharged?
§ 2.1(b)-(d) If council plans to adopt. If so, right becomes defunct
• 5) Leases? Buys subject to lease ∴ leaseholders retain rights under lease after sale
o Despite ≠ adopt, warn client of future adoption costs (to bring up to adoptable standard) = paid by
TITLE PLAN ‘frontagers’
• 1) Title plan matches contract? • 4. Registered right on servient land?
• 2) Check correct boundary marked (e.g. eastern), easements o SIM search:
§ If registered, gives title number of the ROW lane /
OTHER § Check charges register of burdened land *“The land in this title is subject to… ROW X”
• Inspect copies of conveyances referred to in Official Copies, where adverse rights ≠ extracted § If unregistered, ask Seller’s solicitor to put a caution against first registration on the burdened
land, otherwise sold + new owner isn’t bound by burden of easement Restrictive covenants
STRUCTURE TO ANALYSE OFFICIAL COPIES
• Tell Buyer. No further action, unless interferes w/ intended use
• 1) Identify issue: Which register? Entry no.? 3) TITLE ABSOLUTE
o “Proprietorship Register, entry 3 = TIC restriction” • Ask seller who PWB is; whether breached before; if applied for consent + was it refused? *Don’t alert
• Mortgagee requires client to show “title absolute” (true + proper owner) to get loan PWB, otherwise prevents buyer getting insurance
• 2) Relevance, e.g. type of business, future plans
o “Single owner can’t sell property on their own b/c property owned beneficially as TIC 4) REGISTERED PROPRIETOR = SELLER?
§ Issue = if 1 dies/1 owner ≠ want to sell property” • Individuals
• 3) Solutions • Companies: Check name, number, solvency at Companies House
o Enquire w/ seller/Land Registry + inform client • Joint tenants:
o Further action? Surveys, experts o 1 surviving JT = survivor executes b/c has both legal + beneficial interest vested in him
o Possible solutions: § Requires death certificate
§ Special Condition in contract • Restriction on Proprietorship Register (“no disposition by a sole proprietor”) = severed joint tenancy ∴
§ Appoint 2nd trustee ∴ purchase price paid to both trustees to overreach any beneficial interest beneficial estate is now held as TIC
o 1 surviving TIC = appoint 2 nd trustee ∴ overreaches any beneficial interests in property *’Vendor’s written consent’ = PWB *In exam, write PWB, not vendor
SEARCHES + ENQUIRIES *Identify issues, relevance, searches, solutions/potential issues to client § Requires death certificate + deed of appointment § PWB named in entry 1 of Charges Register. If died / sold land w/ benefit of RC = his successors in title
Compulsory searches
• Personal representative: § CPSE 4.2(c) Asks Seller who PWB is
• 1. LLC1: PP granted, conservation areas, listed buildings, change of use, smoke control order, if parts of GPDO o Requires copy of Grant of Probate § If heir, verify by further enquiries
disapplied *Diff to CLCS for unregistered land o Paying PR = overreaches any beneficial interest
• 2. CON29: PP pending/granted/refused, building regulations, roads, contamination • Attorney: Requires certified copy of power of attorney 9) OVERRIDING INTERESTS
o Local authority answers Qs on planning history + info on surrounding area • Unregistered charges may override purchase ∴ Buyer may be bound
• Mortgagee: Check power of sale exists (mortgage by deed) + has arisen
• 3. CPSEs: Extra info known to Seller = may affect Buyer’s plans • Searches: CPSE, LLC1, physical inspection
o Owner breached covenants 5) LEASES? If so, purchaser becomes landlord
Legal easements
o Non-owner occupiers
6) EASEMENTS BURDENING LAND? E.g. ROW enjoyed by neighbour • Sched 3 Para 3 LRA 2002 Legal easements created under Wheeldon v Burrows
o Unregistered 3rd parties rights
o Barriers to access 7) MORTGAGES? Leases: Sched 3 Para 1 LRA 2002 If ≤ 7 years
o Physical condition, e.g. damp • Ensure Seller’s solicitor undertakes to send ££ to redeem mortgage, otherwise Buyer bound by mortgage
• 4. Drainage and Water Search • Charge removed by: Persons in actual occupation
o If land is connected to mains water + drainage. If not, find out who does o Immediately after completion, Seller discharges via DS1 + submits application to Land Registry to • Sched 1 Para 2 LRA 2002 Interests of persons in actual occupation = overriding
• 5. Desktop Environmental Search: Contamination, flooding risk register Buyer as new owner / • CPSE 16 + ask Seller
• 6. Highways Search: Reveals boundary between public highway + private land o Once receiving sufficient ££ from Seller on completion, Bank sends e-DS1 to LR • Check: Deeds before property was registered to check no interests
o If gap, requires ROW o ∴ Automatically removes mortgagee restriction in Proprietorship Register • Special Condition: Occupier signs ∴ waives interest ≠ bind seller
• 7. Chancel Repair Search: Reveals liability to contribute to maintenance of church • Seller’s solicitor also undertakes to: o Occupier should obtain independent legal advice before signing = confirms he understood nature +
o Forward to Bank the completion monies to discharge the mortgage effect of signing waiver
• 8. Physical Inspection/Survey: Reveals physical defects, occupiers, boundary disputes o Once received from the Bank, forward to Buyer’s solicitor the DS1 / evidence of e-DS1 being filed at LR 1) CPSE.1
Unregistered: Also – • Questionnaire where seller answers Buyer’s Qs
*Buying whole property ≠ require mortgagee’s consent
• 9. Index Map Search (SIM) • If lies, seller liable for misrepresentation
§ VS. Buying part / / other disposition (e.g. granting lease) = requires mortgagee’s consent, b/c
o Registered properties w/ title numbers + unregistered land • If asked, must provide Energy Performance Certificate
mortgage ≠ fully discharged
o Check who owns neighbouring land + boundaries
• 10. CLCS via K15
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