BPP University College Of Professional Studies Limited (BPP)
A document containing all potential / past exam questions from the SGS preparation and activities as well as past exam/ mock papers with model answers for Freehold Land.
BPP University College Of Professional Studies Limited (BPP)
Legal Practice Course
Property Law and Practice
All documents for this subject (22)
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PLP LIKELY EXAM TOPICS / SAMPLE ANSWERS: FREEHOLD
JUST BEFORE EXCHANGE THE CLIENT CALLS TO SAY THE SELLER WILL ACCEPT A LOWER
DEPOSIT – WHAT SHOULD YOU DO?
Confirm with the seller’s solicitor that both parties have agreed to the lower deposit as
opposed to the 10% set out in the contract (which SCPC?). If this has been agreed, then the
contract needs to be amended as, as per S.2(1) Law and Property (Miscellaneous Provisions)
Act 1989, a contract for the sale of land must be in writing and incorporate all the terms as
agreed between the parties. The contact should be amended to state “The buyer is to pay a
deposit of five percent of the purchase price no later than the date of the contract)”. Both
parties need to re-sign the contract, and therefore must been advised that it is unlikely that
exchange of contracts is unlikely to be exchanged today.
RIGHT OF WAY ON THE PROPRIETORSHIP REGISTER
WHY IS THE RIGHT OF WAY SIGNIFICANT FOR THIS PROPERTY?
The property has the benefit of a right of way to and from the property over [X] road,
hatched black on the filed title plan. This right of way allows access to the property from the
public highway, [X] and is the only means of access to the property. It is therefore crucial
that the buyer is satisfied that the right of way is sufficient in allowing them to fully enjoy
their ownership of the property and use it as intended. Further, if the right of way is
defective the buyer would run the risk of buyer property that is landlocked.
WHY IS A RIGHT OF WAY NOT IN EVERY PROPERTY REGISTER?
Most properties abut the public high way so the owners can access the property without
crossing a private road/ someone else’s property/land. In which case, there is no need for a
private right of way, [like the one enjoyed by the owners of [X].
WHAT TYPES OF ROADS SURROUND THE PROPERTY (I.E. PRIVATE ROAD OR PUBLIC
HIGHWAY)? RELY ON THE CPSE REPLIES AND CON 29 SEARCH. WHY IS THIS SIGNIFICANT?
The seller has stated in its reply to CPSE 1.6 that [X] lane/road is a private road, this needs to
be verified by confirming with the local authority, this can be done via enquiry 2.1(a) of the
CON 29 search (a CON 29 search is one of the ‘local authority searches’. This will confirm
which roads, footways and footpaths surrounding the property are public highways and
thus maintainable by the local authority at public expense. Any other roads that are not
named in the local authorities response can therefore be assumed to be private roads. The
reply to 2.1(a) is [X Road/Highway etc] meaning that this is a public highway, therefore as X
Road/Lane etc] was omitted from this reply it is a reply as set out by the seller in its reply to
CSPE 1.6.
Enquiries 2.1(b) to (d) of the CON 29 search should be discussed with the buyer, as these
clarify whether any private roads named in boxes B and C of the CON 29 are due to be
adopted by the local authority. If so, it outlines who will be responsible for making up the
private road to the local authority’s standards for use a public highway and who will be
expected to pay toward the cost of doing so. Enquiry 2.1(c) confirms that that are currently
no plans for [X lane/road etc] to be adopted by the local council.
It needs to be explained to [clients name] that private roads are subject to adoption by the
local authority, whereby they become public highways. Adoption usually requires work to
be carried out to improve the quality of the road so that is suitable for use as a public
highway, which if the [clients name] were responsible for could come with significant
expense. These costs are often borne by the ‘frontagers’ (owners of properties fronting onto
the private road), which [client name] would be after completion of the purchase.
Therefore, even [if/though] Enquiry 2.1(c) confirms that there are no current plans for
adoption, [clients name] should be informed that there is still a possible risk of adoption in
the future.
In relation to the public highway and private road surrounding the property, a Highways
Search should also be undertaken, so that the exact boundary can be identified.
WILL THE RIGHT OF WAY BE ADEQUATE FOR THE CLIENT? IF NO, WHY NOT? CONSIDER THE
PHYSICAL ADEQUACY OF THE RIGHT OF WAY AS WELL AS ITS TERMS IN YOUR ANSWER.
As it has been established that [X Road/Lane etc] is a private road, it is necessary to
establish that the terms of the right of way are adequate for [clients name] needs. Terms of
a right of way an relate to permitted times of use, means of access (e.g. by motor vehicles as
well as by foot), any other restrictions/conditions.
The right of way in the [X] Property Register is free of restrictions in terms of when it can be
used and the means of access, and the existence of this right of way must be reported to
[clients name]. Although the right of way appears adequate for [clients name] in light of the
description given in the Proprietorship Register, it is necessary to consider the physical
condition and adequacy. For example, is the (e.g. is the property wide and strong enough
for the types of vehicles which would be driving to and from the Property given the facts).
The buyer should consider taking advice from its surveyor as to the sustainability of the road
in its current state for the intended use (e.g. buses and coaches).
If the right of way was inadequate for the buyers intended purposes, [clients name] would
need to negotiate a deed of variation of the easement (right of way) with the owner of
[name of private road/lane]. If [client name] have to approach the owner in this respect,
they are likely to have to pay the owner of the burdened land consideration for any deed of
variation granted, as well as the owner’s legal fees. Furthermore, it is important that [clients
name] are made aware that there is no guarantee that the owner of the burdened land will
agree to the deed of variation on terms that are acceptable to [clients name]. Therefore,
depending on the importance of the need of a deed of variation to [clients name], especially
if the required deed of variation is a deal-breaker, [clients name] would need to secure a
contractually binding commitment from the owner of [name of servient land] that they will
grant the deed of variation before [clients name] exchanges contracts for the sale of [name
of property].
NB – rights of way are often granted with limitations, e.g. the hours of use, or restricted to
certain means of access, e.g. right of way on foot only (i.e. no vehicles). In such cases, you
need to ensure whether any of these restrictions on the right of way will adversely affect
your client’s proposed use of the property. If they do, you would need to aim to negotiate a
deed of variation with the owner of the burdened land by the right of way – and the issues
above re negotiating a deed of variation apply in these circumstances too.
WHAT WOULD THE BUYER CLIENT’S LIABILITY BE IN RELATION TO THE MAINTANCE OF THE
RIGHT OF WAY? CONSIDER REPLIES TO CPSE (3.2(C) AND (F)).
The enjoyment of the right of way, [outline what this right of way is], is subject to the owner
of the [name of property in question/being bought] paying a fair proportion of the cost of
repair and maintenance of [name of private road]. There is no indication as to what is meant
by or how much a ‘fair proportion’ is, so to determine this it is necessary to raise this with
the seller by asking how much they have historically been asked to contribute. It is standard
practice to ask for details of any payments made in the last three years, and if no payments
have been made in this period, then the seller should be asked to report back further if it is
possible for them to do so.
In reply to CPSE 3.2(f), the seller states that they have not been required to make any
contributions towards the maintenance of [name of private road/lane]. Therefore, in order
to be advise [name of client] more sufficiently, it may be worth asking the seller to ask the
owner of [name of private road/lane] and ask how a ‘fair proportion’ was calculated prior to
the seller’s ownership if a previous owner was required to pay maintenance, how it would
be calculated now and whether any future maintenance works are planned and the costs of
these. In reply to CPSE 3.2(c) the seller has states that no one uses the right of way apart
from the seller and owner of the private road, it is likely that [name of client] will be
expected to pay for a significant amount, and potentially all, of the maintenance costs.
It is also worth ensuring that [name of client]’s surveyor has checked the condition of the
private road to establish and whether or not any maintenance is currently required. If the
road is in a poor state and works are required, [client name] will want to know it’s likely
contribution before committing to the purchase of Elton Hall.
NB – if there is a right of way in any Property Register you should always ask the seller about
its maintenance obligations even if the right of way itself is silent on the subject. This is
because the law makes it clear that if someone is taking the benefit of a right, they have the
obligation to pay towards its upkeep.
IT IS IMPORTANT TO CHECK TO SEE IF THE BURDEN OF THE RIGHT OF WAY HAS BEEN
REGISTERED AGAINST THE BURDENED LAND. WHAT IS REVEALED BY:
- THE RESULT OF THE INDEX MAP, AND
- THE OFFICIAL COPIES OF THE TITLE WHICH INCLUDES THE PRIVATE ROAD
The search of the index map (SIM search) is a search of the property itself and its
neighbouring properties. A SIM search is done in order to determine which land is registered
at the Land Registry and which land is currently unregistered. As well as confirming that the
[name of property being purchased] is registered (title number XXXXX), the SIM result
reveals the land to the north west of [the property being purchased] is registered with title
number BM XXXXX, and that the private road forms part of the title number BM XXXXXX.
The other land bordering the property remains unregistered.
The official copies of BM 561374 reveal that the burden of the right of way over [name of
private road] is registered against that title in the Charges Register. This is positive for [client
name] as registration of the burden in this way is required for the right of way to be
enforceable by [client name] when they are the owner of [name of property].
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