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Summary Property Law and Practice Revision Sheet (21)
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- Property Law & Practice
PROPERTY LAW AND PRACTICE DISTINCTION STYLE NOTES
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PROPERTY LAW AND PRACTICEREVISION SHEET: REGISTERED PROPERTY - TITLE INVESTIGATION
THE PROPERTY REGISTER
Note: in exam work through each of these and see which ones apply
Description of Property described by the address and reference to the title plan.
the Property
Right of Way Buyer’s solicitor must ensure buyer will be able to use the right of way freely and as
Over Someone necessary for proposed plans to property by considering the following:
Else’s Land
Note: in exam state that it is sufficient that you are satisfied with the right of way, so that
*Discuss all 4 you can fully enjoy the ownership of the property.
criteria in exam
1. Is the right of way adequate for the buyer’s purposes of the land
Legal adequacy: any limitations or restrictions to right of way (e.g. time of day /
foot only).
Physical adequacy: is the right of way fit for purpose - e.g. if use of property is
a shop and right of way by foot only, how could deliveries be made / is the right
of way physically wide enough for the type of vehicles that will be travelling on
this right of way.
2. Maintenance
Buyer will have an obligation to contribute towards maintenance costs
associated with the right of way - ‘a fair proportion of the cost of repair and
maintenance’.
Enquiries must be made about whether the seller has been asked to contribute
towards the cost of maintenance in a private road in the past - if so, how much
and how often.
Ask seller’s solicitor for last three years history of maintenance payments if they
have been regular, or longer if on an ‘ad hoc’ basis.
3. Adoption
Buyer must be advised of potential future costs of ‘adoption’ of road works
and other facilities serving the property - see q2 CON29.
A local authority may have the right to call for private roads over which the
property has a right of way, to be brought under local authority control.
o The road would be a public highway and maintenance costs met out of
the public purse.
o The cost of putting the road into a suitable standard of repair before
adoption and improving the quality of the road (an adoptable standard)
would have to be met by owners of the properties fronting onto the road.
o This can be pricy.
If there are no current plans for adoption, you must advise your client that they
could be subject to adoption in the future.
4. Registration
Check the benefit of the right of way is registered in the Property Register of
the dominant land, and the burden of the right of way is registered over the
burdened land this ensures the right of way is enforceable.
o Note: firstly check the burdened land is registered by carrying out a
search of the index map, and then get an official copy of the burdened
lands title to make sure the burden of the right of way has been
,PROPERTY LAW AND PRACTICE
REVISION SHEET: REGISTERED PROPERTY - TITLE INVESTIGATION
registered in the Charges Title of that register.
o If it has not - ensure the seller gets the burden of the right of way
registered in the burdened lands Charges Register before completion.
If a right of way is inadequate for its purposes
Negotiate a deed of variation of the easement with the owner of the burdened
land.
They are likely to have to pay the owner of the burdened land consideration for
any such deed of variation, as well as legal costs.
There is no guarantee that the owner of the burdened land will agree to a deed
of variation on terms that are acceptable to the purchase.
If the need for a deed of variation is a deal breaker, then the purchasers would
need to secure a binding commitment from the owner of the burdened land to
grant any deed of variation before they exchange contracts with the seller.
Rights to Lay Private sewers and drains serving more than one property that are connected to
Pipes for Water public sewerage - statutory sewerage undertakers responsible for maintenance and
and Sewerage repair (Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011)
Drains located within a property boundary that serves only that property - owner
responsible for maintenance and repair.
Rights of Light Easement to enjoy natural light that passes over someone else’s land and enters
through a defined aperture in a building (such as a window).
Can be granted by a deed or prescription under the Prescription Act 1832 (light
must be enjoyed without interruption for a period of at least 20 years from the
date on which the action asserting the right was begun, and without any written
consent).
Colls v Home and Colonia Stores Limited [1904]- if a right of light is established, the
owner of the dominant land is entitled to an uninterrupted flow of sufficient light for the
comfortable use and enjoyment of the building.
Note: seller may want to ensure buyer does not get a right of light, as it would
stop the seller being able to develop the land they are retaining.
Remedy for An action for nuisance.
Obstruction of
a Right Claimant must prove:
Title to the easement (by way of an express grant);
The scope of the easement;
Substantial interference of the right.
Note: if there is an obstruction of a private right of way, the obstruction will only be
actionable if it is considered to be substantial (if the obstruction means the right cannot
be substantially and practically exercised as conveniently as before).
If obstruction is substantial - an injunction may be granted preventing the
obstruction of the easement.
Guest Estates LTD v Milner’s Safes LTD [1911] - locked gate blocking private
right of way was substantial obstruction.
Pettey v Parsons [1914] - erection of a gate across a private right of way - no
interference provided proper facilities given to owner of dominant land.
,PROPERTY LAW AND PRACTICE
REVISION SHEET: REGISTERED PROPERTY - TITLE INVESTIGATION
THE PROPRIETORSHIP REGISTER
Class of Title 1. Title Absolute:
Applicable to freehold and leasehold.
Proprietor satisfied Land Registry it was the true owner of the property.
Lender needs this for a mortgage.
2. Qualified Title:
Applicable to freehold and leasehold.
Must bring this to buyer’s attention if on register.
Proprietor’s ownership established only for a limited period or subject to certain
reservations that cannot be disregarded (e.g. certain title documents missing
when land was registered - under S62 LRA 2002 title can be upgraded to Title
Absolute if a document that was originally missing is provided).
3. Possessory Title:
Applicable to freehold and leasehold.
Proprietor in actual possession of rents and profits but no documentary evidence
about how they obtained ownership (such as a squatter).
4. Good Leasehold:
Leasehold only.
Proprietor is a leaseholder and cannot provide evidence of landlord’s title to
land.
Registered The following people may have the legal right to sell the land if they are named on the
Proprietor - do register as the registered proprietor
these people
have the right 1. Individual
to sell the land Must sign the contract and execute the purchase deed.
Note- can also include a Personal Representative who is responsible for
*Check to see administering the estate of the deceased. The buyer needs to see the ‘Grant of
if any of these Representation’ to check that the PR has actually been appointed. They must
apply- LOOK then sign the contract and execute the deed. The payment of monies to a sole
OUT FOR PR overreaches all beneficial interests. Land Registry require official or
‘RESTRICTION’ certified copy of Grant of Representation of deceased sole owner.
OR LACK OF
2. A Company
In exam: Must sign the contract and execute the purchase deed.
Check person signing the contract has the authority of the company to do so.
Register should contain the company number - buyer can check the current
name of the company and all of its change of name history.
3. Limited Liability Partnership
Must execute the contract and purchase deed.
Two members, or one member and a witness must execute it.
4. Joint Owners
Legal estate - must be held by owners as joint tenants.
Beneficial interest - can be held either as joint tenants or tenants in common.
Joint owners who act for business purposes:
S20 Partnership Act 1980 - land owned by partners is held on trust for the
, PROPERTY LAW AND PRACTICE
REVISION SHEET: REGISTERED PROPERTY - TITLE INVESTIGATION
partnership.
Rebuttable presumption that partnership property is held by partners as tenants
in common, because ‘survivorship holds no place in business’.
The same applies if two LLPs / two companies own the property for business
purposes.
Individual joint owners:
If joint owners owned property as joint tenants and one of them dies - the
deceased’s legal and beneficial interest in the property will pass automatically to
the survivors (rule of survivorship).
If joint owners owned property as beneficial tenants in common and one of them
dies - legal estate will pass automatically to the survivor. Beneficial interest will
pass via the deceased’s will or the rules of intestacy if they do not have a will.
Beneficial tenants in common: there will be a ‘restriction’ on the Proprietorship
Register.
o Note: restriction will usually indicate that a sole proprietor cannot
dispose of a registered estate, and a second trustee will need to be
appointed (see below) - ‘no disposition by sole proprietor’.
Beneficial joint tenants: there will not be a restriction.
Be aware of the following situations in relation to sellers who are joint owners
a) More than one surviving individual tenant in common
All surviving tenants in common must execute the contract and purchase
deed.
There are still at least two trustees when there is more than one surviving tenant
in common, so the beneficial interest in the deceased’s tenant in common’s
interest will be overreached when the purchase monies are paid to the surviving
tenants in common.
The Land Registry require an official or certified copy of the death certificate of
the deceased tenant in common, when registering this purchase.
b) Only one surviving individual tenant in common
Legally: ownership vests in surviving tenant in common by survivorship.
Beneficially: deceased’s tenant in common’s interest needs to be overreached
by the appointment of a second trustee and payment of the purchase monies to
a second trustee, and the one surviving tenant in common - they cannot sell the
property by themselves.
o The surviving tenant in common will sign the contract that may include a
special condition agreeing to appoint a second trustee on completion.
o The surviving tenant in common will appoint the second trustee on
completion, usually by a deed of appointment (by including a provision in
the TR1 purchase deed). The second trustee is usually the seller’s
solicitor.
o Both the trustee and the surviving tenant in common will execute the
purchase deed.
The Land Registry require an official or certified copy of the death certificates of
the deceased tenant in common, and the deed of appointment of the second
trustee, when registering this purchase.
c) More than one surviving joint tenant
All surviving joint tenants must execute the contract and purchase deed.
Legal and beneficial ownership vests in the surviving joint tenants under the
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