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...
, SGS 1- Title investigations
Learning outcomes 1. complete an investigation of a registered title with minimal
supervision;
2. identify issues of key concern to the buyer;
3. understand why such issues are a concern to a buyer; and
4. evaluate the solutions to such issues and advise on the best solution.
Exam tips o Questions on this topic will range from 12-22 marks
o Higher mark questions normally involve planning permission
o Distinction marks- show client how to resolve the issue. What would you do?
What steps would you take?
What steps must be o Once there is an exchange of contracts then there is a binding contract, can’t
taken before go back so must check any issues before this happens
exchange of o Deducing title means you must check who owns the property and whether
contracts? title is correct
o Buyers solicitors will download a recent title
o Non extracted document – “copy filed”- hasn’t been extracted so must look at
deed
Property register o Check if there is a right of way
o Most properties abut the public highway so there is no need for right of way
as so this will not be shown on the property register
o Rights of o ALWAYS CHECK – adequacy, maintenance, adoption, registration
way o Must check that right of way is sufficient so that client can fully enjoy
ownership of the property
o If the owners do not have the benefit of the right of way or if the right is
defective then the property would run the risk of being landlocked
o Is the right of way a private road, this might need to be verified with local
authority (look at CON 29 document)
o Are any roads public highways? Are they maintainable by the local authority
at the public’s expense?
o Might need to look in CPSEs
o CON 29 will clarify whether the roads are due to be adopted by the local
authority
o Who will pay for works such as kerbing, tarmacking, street lighting etc?
Adequacy o Can the right of way be accessed at any time or
specific times only?
o Can it be accessed by all means of access?
(vehicle/on foot)
o Is it free from any other unacceptable restrictions
or conditions and
o Is it physically adequate in terms of its size,
location and construction? Is it wide enough for a
coach/bus, if it needs to be?
o If the right of way is inadequate for its purposes,
the client would need to negotiate a deed of
variation of the easement with the owner of the
right of way
o This can include paying the owner of the
burdened land consideration as well as any legal
costs
o There is no guarantee that PW burdened land
would agree to terms in variation deed so need to
know whether the issue is a deal breaker for the
client prior to exchange of contracts
o Rights of ways are often granted with limitations
eg: 9am to 6pm, in such cases would need to
check with client if this would adversely affect their
, proposed use of the property (would need deed of
variation if an issue)
Maintenance o Is there anything that says a “fair proportion of the
cost of repair and maintenance of the right of way
must be paid”?
o Raise a query with the seller as to how much “fair
proportion” equates to , how much has historically
been paid?
o If no such history then need ot ask seller to go
back further if records are available
o Does anyone else use the right of way? If not then
the client may be liable to pay all maintenance
costs
o Is maintenance currently required? What is the
state of the right of way at present?
o Always ask seller about maintenance obligations
even if the right of way is silent on the subject, this
is because someone will have the obligation for its
upkeep by law if they benefit from it
Adoption o Works must be carried out to improve the quality
of the road
o Costs of such works can be very expensive and
may be borne by the ‘frontagers’ (the owners of
the property fronting on to a private road)
o Make sure you carry out a highway search to
identify the boundary between the public highway
and private land
Registration o Has the burdened right of way been registered
against the burdened land?
o What is revealed by the search of the index map
and the official copies of the title?
o SIM also reveals neighbouring properties and
determines which land is registered/ unregistered
Proprietorship Does the sellers mortgagee need to consent to the sale of the property?
register o If the sale is the sale of the whole property the mortgagee restriction in entry
3 of the proprietorship register will be automatically removed when the land
registry receives DS1 or e-DS1 (look at charges register> mortgages below)
o Consent only required where part of the property is being sold which will not
lead to the mortgage being discharged in full
Charges register Positive covenants o Are there any positive covenants in the
charges register?
o Covenants o Will it/they be enforceable against the client?
o Eg: maintain good condition of the fence
o The burden of positive covenants does not run
with the land however the proprietorship
register will show if the client has entered into
an indemnity covenant with its seller agreeing
to comply with the positive covenant
o Has the seller breached any positive
covenants? If so what course of action would
you recommend for the client?
• Ask the seller to rectify the breach eg:
repait the fence
• Ask for a price reduction which would
cover the costs of remedying the
breach eg: price to repair fence
• Our client may be taking out a loan so
lender needs to be informed of any
, price reductions, seller repairing the
breach would be easier in this case
o If the breach is not remediable by taking action
to perform the covenant then the options would
be the same as the past breach except the
Upper Tribunal is not available for breach of a
positive covenant
Restrictive covenants o Are there any restrictive covenants? Will it/they
be enforceable against out client?
o All restrictive covenants listed on the charges
register will automatically be binding on the
client because “they touch and concern the
land” Tulk v Moxhay
o We refer to PWB rather than vendor as vendor
is a defined term and refers to the original
vendor ie: when the covenant was first entered
in to, this might have changed since
o Has the seller breached any RC? If so what
course of action would remedy this?
o Has the PWB consented?
o If not
1) Insist that the seller buys restrictive
covenant insurance at its expense,
put a special condition in the contract
before completion, insuring the client
and any future owners of the land
against the possibility of the PWB bring
an action in the future
• The older the breach, the more likely it
is that the RC insurance will be
available at a reasonable cost
2) If insurance is not available because
breach is too recent, the seller should
obtain retrospective consent from
the PWB
• PWB may charge for this consent/
refuse it
3) Apply to the upper tribunal (Lands
Chamber) to have the RC removed or
varied because it is obsolete is the final
option
4) This is usually impractical/ time
consuming/expensive/ no gurantee of
success
o An indemnity from the seller is not usually recommended because it is only
as good as the solvency of the person/company giving it, this becomes more
difficult the longer it has been ince the indemnity was given
Is there likely to be a future breach of a covenant?
1. Insurance
2. PWB Consent
3. Upper Tribunal
o These options will be incurred at the expense of the buyer, the seller is
unlikely to agree to price reduction for future breach
o However, if buyer and seller need to proceed with the same remedy for past
and future breaches, even if in relation to different covenants, then your client
can
• Take out a single policy covering both past and future breaches and
come to an agreement with the seller as to how ot split the premium
or
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