LPC BPP Property law & Practice
Paper I - Freehold
Exam Tip: Exam Structure:
In relation to remedying past/future breaches of (1) Identify the Issue;
covenants, explain why you would only speak to PWB (2) Explain the Issue and the legal ramifications if left
AFTER you have attempted to obtain insurance.
Title Investigation unresolved; and
(3) Provide solutions to the Issue.
Property Register
§ Describes the property with reference to a title plan and contains the rights which benefit the property and any excluded rights.
§ If the right benefitting the property is not fully extracted on the property register, must request copy of the deed creating the right to inspect.
Right of Way A right of way over a neighbouring property is necessary when the property does not abut a public highway. When a property has the benefit
(AMAR) of a right of way, need to check the following:
(1) Adequacy
§ The right of way must be adequate for client’s purposes.
§ Consider whether the right of way:
o Has restrictions on times it can be used;
o Has restrictions on how it may be used (by foot / motor vehicles);
o Whether it is physically in good condition and whether it will be adequate in terms of size and location
(2) Maintenance
§ It should be assumed that the owner of the property will be under an obligation to make contributions to the maintenance of a right of way.
Buyer’s solicitor should therefore always ask seller’s solicitor about maintenance payments.
§ Buyer’s surveyor should check the physical condition of the right of way to establish whether any maintenance is currently required.
§ In the event it is not clear from the wording of the right of way how much contribution is required or where it is not mentioned at all:
(a) A query should be raised with the seller’s solicitor to see whether the seller has contributed in the past and if so, what the
contribution was; however
(b) If it becomes clear seller has not made any contributions whilst they have owned property, ask the seller to speak with the owner of
the burdened land which the right of way goes across to determine:
§ What contributions have been made in the past; and
§ Whether any maintenance works are planning in the near future and if so, what will they cost.
(3) Adoption
§ Privately owned roads may be adopted by the local authority and converted into public highways. Public highways are maintainable by the
local authority at the public’s expense.
§ In the event of adoption, the frontagers (the owners of the properties which front onto the private road) will be responsible for the cost of
the works required to bring the private road up to the required standard of a public highway (street lights etc) which is expensive.
§ Raise query with seller’s solicitor to check whether the local authority has plans to adopt the private road which the right of way is
granted over.
§ Undertake Highways Search to identify whether a road is a public highway or private road and reveal any plans for adoption.
(4) Registration of Right of Way
§ Perform a SIM search to check whether the burdened land which the right of way passes over is registered.
§ If the burdened land is registered, you must check the charges register of the title copies of the burdened land to see whether the right
of way benefitting the property is registered properly.
§ If the right of way is not properly registered over the burdened land, you must ensure that the seller takes the necessary steps to
register the right of way over the burdened land before exchange of contracts.
§ If the burdened land is unregistered, the SIM search would tell you whether there is already a caution against first registration entered
against the burdened land. If there isn’t one, you would ask that the seller’s solicitor enters a caution against first registration on the
burdened land in respect of the right of way.
Right to Lay Water Industry Regulations 2011 – the statutory sewerage undertakers are responsible for the repair and maintenance of sewers and drains
Pipe (including lateral drains) which serve more than one property and are connected to public sewerage systems.
Responsibility for drains located within a property’s boundaries which only serve that property remains with the property owner.
Obstruction The obstruction must be considered substantial and the claimant will have to prove:
of an § Title to the easement;
Easement § Scope of the easement; and
§ That there has been substantial interference of the right.
For an obstruction to be substantial, the court will consider whether the obstruction means the right cannot be substantially and practically
exercised as conveniently as before.
The remedy is an action for nuisance.
, Proprietorship Register
§ Check the proprietorship register to ensure that the seller has good title to sell the property.
§ The proprietorship register will indicate what class of title the registered proprietor has to the property. Do not advise a buyer to purchase unless seller has
title absolute.
Sale by Company § Undertake a company search on Companies House to check that the registered number of the company matches that which is on
the Proprietorship Register. Company may change their name but the registered number will remain the same.
§ Company search will also reveal whether the company has gone insolvent.
Sale by Joint § If there is no tenant in common restriction contained in the proprietorship register the joint owners will own the property as joint
Tenants tenants both legally and beneficially.
§ In the event of death of one of the joint tenants, the legal estate will pass to the sole surviving joint tenant who will be able to sign
the contract and transfer deed solely.
§ Sole surviving joint tenant will need to provide you with a certified copy of the certificate of death of the deceased joint tenant as
the land registry will want to see this when transferring the property into the name of the buyer upon completion.
Sale by Tenants § Legal ownership as joint owners will be as joint tenants but the beneficial ownership will be as tenants in common if the tenants in
in Common common restriction (below) is contained in the proprietorship register.
§ In the event of death of one of the tenants in common, the beneficial ownership in the property will pass to those named in the
deceased’s will but the legal estate will pass to the sole surviving tenant in common.
§ Therefore, when purchasing from a sole surviving tenant in common, they will need to appoint a second trustee to overreach the
beneficial ownership in the property. Seller must provide you with a certified copy of the certificate of death of deceased tenant in
common and deed of appointment of second trustee.
§ Both the second trustee and sole surviving tenant in common will have to sign the contract and transfer deed.
Sale by Personal § Personal Representative will be selling the property on behalf of the estate of the sole owner who has died.
Representative § Will need to request a certified copy of the grant of representation to provide to the land registry when transferring the property
into the name of the buyer.
Charges Register
§ Sets out any third party rights burdening the property.
Mortgages § Buyer’s solicitor should request an undertaking from seller’s solicitor in the form recommended by the Law Society to forward the completion
monies to the lender to enable them to discharge the mortgage and forward the form DS1 to the buyer’s solicitor once received from the
lender.
§ Mortgage is discharged by buyer’s solicitor sending form DS1 to land registry at completion.
§ Lender’s prior consent to the sale of the property is not required when sold as a whole as the whole of the charge will be automatically
removed by the land registry once they receive form DS1. However, lender’s prior consent is required when selling a part of the property.
§ Positive covenants are actions which the owner of the property will have to perform.
§ The burden of positive covenants does not automatically run with the land.
§ However, if there is a chain of indemnity covenants then this will have the effect of the burden of the positive covenant running with the
land.
§ The Proprietorship Register will indicate whether the current seller gave an indemnity covenant to the previous seller of the property. If
this is present, the buyer of the property will be required to give an indemnity covenant to the seller upon sale pursuant to SCPC 7.6.5.
§ An indemnity covenant will seek to indemnify the seller for any loss caused by a failure to comply with the positive covenant and therefore,
if the buyer will have to give one, they will have to comply with the requirements of the positive covenant.
Continuing Past Breach of Positive Covenant
Positive The CPSEs and a physical inspection of the property will indicate whether there has been any past breach of a positive covenant which is
Covenants continuing.
If the past breach IS remediable:
(1) Ask the seller’s solicitor to remedy the breach prior to purchase. This should be included in the contract as a special condition of sale; or
(2) Agree a price reduction with the seller for the costs the buyer is likely to incur in remedying the breach. If there is a mortgage for the
purchase, the lender should be informed of the price reduction as this may impact the amount they are willing to lend.
If the past breach IS NOT remediable:
(1) Insist that the seller buys positive covenant insurance at their expense which will be included in the contract as a special condition; or
(2) If insurance is not available because insurers consider that breach is too recent then ask that seller speak with PWB to obtain retrospective
consent for the breach and pay any associated costs. This should be included as special condition in contract.
Future Breaches of Positive Covenant
(1) Buyer could purchase positive covenant insurance protecting them from PWB bringing a claim; or
(2) If insurance not available, could speak with PWB and ask them to release the positive covenant or modify it to allow for future breach.
, § Restrictive Covenants prevent the owner of a property from taking certain actions.
§ PWB is the person who has the benefit of the restrictive covenant and will usually be the individual who originally put it in place.
§ Restrictive covenants will automatically run with the land (Tulk v Moxhay) and therefore current owners will be liable for continuing past
breaches.
§ The CPSEs and a physical inspection of the property will indicate whether there has been any breach of the restrictive covenant in the past
which is continuing.
Continuing Past Breach of Restrictive Covenant
(1) Insist that the seller buys restrictive covenant insurance at its expense and put a special condition in the contract binding the seller to do
this. Insurers will consider the date of the breach and the age of the covenant when deciding whether to offer such insurance.
Restrictive (2) If insurance is not available because the breach is too recent, then insist that the seller obtains retrospective consent from PWB and put a
Covenants special condition in the contract to this effect. PWB may charge for this and seller should pay cost.
(3) If PWB refuses to grant retrospective consent, an application to the Upper Tribunal (Land Chamber) to have the restrictive covenant
removed or varied because it is obsolete is the final option. This is a time consuming and expensive option with no guarantee of success.
Future Breach of Restrictive Covenant
(1) Buyer could purchase restrictive covenant insurance. Insurers will look at the age of the covenant and whether there have been any past
breaches. At this point we will have to consider FSMA and our professional conduct obligations.
(2) If insurance is not available, then buyer should speak with PWB and ask them to release or modify the restrictive covenant. PWB may
charge for this.
(3) If PWB is not willing to release or modify the restrictive covenant, then an application to the Upper Tribunal (Land Chamber) will be
necessary.
Professional Conduct and Covenant Insurance Policies
Must consider the general prohibition under s.19(1) FSMA when advising on the merits of an insurance policy or arranging an insurance policy for a client.
Therefore, to avoid breaching s.19(1) FSMA, you must ensure that either:
(1) Ensure that your firm is indirectly authorised by the SRA to advise the buyer on the merits of an insurance policy; or
(2) Advise the buyer to consult an independent financial adviser or insurance broker for the necessary advice and for the arrangements to be put in place.
Unregistered Overriding Interests
§ Contained in Schedule 3 of LRA 2002.
§ Discoverable by physically inspecting the property and through CPSE.
Leases § If granted after 13 October 2002 and are under 7 years they will be overriding if unregistered.
§ If granted before 13 October 2002 and are under 21 years they will be overriding if unregistered.
Easements § Legal easements can arise through prescription, necessity or as a result of the rule in Wheeldon v Burrows (sale of part of land
may invertedly result in rights being created over the retained land which benefit the part of the land which has been sold) and are
overriding interests.
§ All easements created by a deed must be registered on the charges register to be legal easements.
Persons in Actual § Individuals that live at the property but who are not owners or tenants will have an overriding interest.
Occupation § Would require person in actual occupation to sign a waiver of declaration confirming that they do not have interest in the property
and agreeing to vacate the property on or before completion.
o Person in actual occupation should obtain independent legal advice before signing the waiver of declaration to ensure they are
aware of its consequences.
, Exam Tip:
Always make a note that the conditions of planning
permissions should be checked if granted to ensure
Planning Permission work carried out complies.
Planning Permission
S.57(1) TCPA – Planning permission is required for the carrying out of any development of land.
S.55(1) TCPA – Development is defined as being two kinds:
• The carrying out of building works; and
• The making of any material change in use of any buildings or other land.
Building Works
Planning The following building works which are for maintenance, improvement or other alteration are not considered developments and therefore, do
Permission not require planning permission:
IS required
• Building works which affect only the interior of the building (s.55(2)(a)(i) TCPA 1990); or
• Building works which do not materially affect the external appearance (s.55(2)(a)(ii) TCPA 1990).
However, adding additional underground space does not fall within these exceptions.
Change of Use
Art 3(1) TCP(UC)O – a material change in the use of a building means changing from one use class to another. This includes, from a sui
generis to a use class or from one sui generis to another.
Planning permission is not required where there is a change of use of the property within the same use class.
An application for planning permission is not needed where the building works or the change of use are classified as a permitted
development under the GDPO.
Under the GDPO, blanket planning permission is granted for the permitted development and so although the building works or material
change in use in question are still ‘development’, they do not require an express application for planning permission to be made to the local
planning authority.
Building Works Permitted Development
Building works that are considered permitted development are contained at Part 2 Schedule 2 GDPO. The building works must satisfy all
the relevant criteria contained in the GDPO for that type of work.
Material Change of Use Permitted Development
Planning
Permission If change of use was pre-1 September 2020
is NOT § Use the pre 2020 GDPO and if the use class the property was in is in the same row as the use class the property is in now then it was
required a permitted change of use.
If change of use was between 1 September 2020 and 31 July 2021
§ Firstly check the post 2020 GDPO to see if it is a permitted development, using the new use classes.
§ Where a change is not allowed under the post-2020 regime then look at the pre-2020 regime using the pre-2020 regime use
classes. If the change of use is allowed under the old regime then it will still be considered a permitted development.
If change of use was after 31 July 2021
§ Use the post 2020 GDPO and if the use class the property was in is in the same row as the use class the property is in now then it is a
permitted change of use.
Article 4 Declarations
§ It is possible for the local planning authority to make an Article 4 Declaration in a particular area to disapply the GDPO, meaning
building works and material changes of use which are considered permitted developments will now require applications for planning
permission.
§ Article 4 Declarations are commonly made in conservation areas, so that the local authority has more input.
§ When advising the buyer on purchasing a property, it will be necessary to check the results of the LLC1 & CON29 searches to see
whether an article 4 declaration has been made and, if so, which permitted developments have been disapplied.
Enforcement Notice
Local planning authority can serve an enforcement notice following breach of planning rules. This can either require that the land is
restored to the condition it was in before the development occurred or force compliance with any conditions of the planning permission.
Time Limits for Enforcement – if breach is outside of enforcement period buyer is not to be concerned
Breach Enforcement Period – s.171B TCPA 1990
Enforcement
Carrying out building works without planning permission. 4 years from substantial completion of the works.
Change of use of a building to a single dwelling house without planning permission. 4 years from the date of the change.
Any other change of use without planning permission. 10 years from the date of the change.
Breach of a condition attached to a planning permission. 10 years from the date of the breach.
Concealed development No time limit
