PLP Consolidation
SGS 1
Investigating title to registered land
Header
Check if recent by the date and time. Should be less than 1 year
Check if the title number corresponds with Contract + TR1
Property Register
Everything good, what land benefits from
Check description of property, does it match that of the Contract + TR1.
*Also check title plan to see if it matches description in property. Check hatching or colouring which could
indicate boundary responsibility or easements, or land which has been removed from title.
Rights benefitting the property:
If the right has been extracted (typed out), no need to obtain copy of the document creating right.
If not extracted, instead mentions deed and “Copy filed”, then seller’s solicitor needs to send copy
of document.
1. Right of way
If property does not about public highway, it will need a right of way over someone else’s land.
Adequacy -
Report existence of right to client
What does the right of way allow? Copy out details of right of way.
What are the needs of the client?
Is it adequate: time? Mode of transport? No restrictions or conditions? Physically – size, location
and construction
Give advice to client, mention that they can take advice from surveyor as to suitability.
If inadequate, need to negotiate a deed of variation with owner of land which easement is over.
Could expensive and difficult, may need to secure binding commitment if variation is deal-breaker
Maintenance -
Buyer will always have obligation to contribute towards maintenance, whether express or not.
ALWAYS ask seller about maintenance obligations
If CPSE doesn’t reveal details on maintenance, ask the seller for last three years history of
maintenance payments if payments have been made regularly. If irregular, go back further.
If obligation is expressly provided, but amount is vague (e.g. “fair proportion of the cost of repair”),
just ask how much has been historically paid. If no history, maybe contact owner of land (which
easement goes over) to find out how it was previously calculated.
Proportion of maintenance amount depends on how many people have right over land.
Adoption
This local authority right to call for private roads, (over which the property has a right of way), to be
brought under local authority control
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, This can lead to cost of bringing it up to suitable standard of repair.
CON 29 search will reveal plans of adoption. If CON 29 reveals that it has not been adopted, client
should be warned of the potential future cost of upgrading works if the Local Authority ever adopts
the pathway
2. Right to lay pipes for water and sewerage
Right to lay pipes under someone else’s privately owned land.
After regulations, ownership of private sewers serving more than one property connected to public system
are dealt with by statutory sewage undertakers
3. Excluded rights – need to be reported to seller, not issue unless buyer wants to use right e.g. mines and
minerals
Registration of burden of the right (e.g. of way) against burdened land
1. SIM (search of the index map) results will reveal the title number of burdened lands
2. Then go to official copies of this title number, and check whether burden is in Charges Register.
3. For right to be enforceable, must be register in Charges Register
Proprietorship Register
1. Class of title
How satisfied the Registrar is that the register owner can rightfully claim ownership of title
Report the class to client
Title Absolute – true and proper owner. Normally only this one is accepted for mortgages (s.9(2)
LRA 2002 – title is such as a willing buyer could properly be advised by a competent professional
adviser to accept)
Others: Qualified, Possessory and Good Leasehold
2. Registered Proprietor
Individual – name and address needed
Company – company number needed. Do a check with CH to find out correct and current name and
address of the registered proprietor.
Cross reference these results with the contract (Heads of Term), are they the same.
Joint Ownership
TIC – What is it? Upon death of one of the owners, deceased legal title passes to survivor,
but beneficial passes to will and needs to be overreached. How to spot? In proprietorship
register, there is a RESTRICTION, saying “no disposition by sole proprietor”. Here you ask
seller to agree to appoint second trustee upon completion. (when registering purchase,
official or certified copy of the death certificate will be needed, deed of appointment of
second trustee)
JT (business and individuals) – What is it? Upon death of one of the owners, both the legal
and beneficial interest passes to the survivor. How to spot? If there is no TIC restriction,
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, then legal and beneficial interest is held as JT’s. (official or certified copy of the death
certificate needed still).
3. Indemnity Covenants
Positive covenants do not run with the land.
However, entries in Proprietorship register shows that when the land was bought, the buyer promised that
he will observe and perform the positive covenant and indemnifies the seller.
A subsequent buyer will be expected to give a similar indemnity covenant to the seller; therefore, client will
have to observe the positive covenant (SCPC 7.6.5).
Charges Register
Third party rights which burden the property
1. Restrictive Covenants
Restrictive covenants (properly registered) run with the burdened land and will bind purchasers of
burdened land as long as they ‘touch and concern the land’ pursuant to Tulk v Moxhay. Also, benefit of
restrictive covenant attaches to benefitted land and passed to who owns that land at the time (PWB).
Common example: No alterations to be made without consent of the PWB – if you keep any building that
was built in breach of this covenant, then breach is continuing –
Past breaches that will continue after completion (as they buyer will be liable)
1. Ask seller if seller consent of PWB was obtained prior to breach. If it was, no breach and seller
should provide copy of the PWB’s consent prior to exchange of contracts.
If NO consent
2. Ask seller’s solicitor to obtain restrictive covenant insurance – quick and cheap for past breaches,
especially if covenant is old and no complaints so far. Insurance is “one-off” premium and covers
both the buyer and buyer’s successors in title. Date of covenant and date of breach are needed to
see what costs would be like. (must comply with S.19(1) FSMA)
3. If insurance is not available (because breach was very recent and/or covenant is new), then seller
should approach PWB for retrospective consent – put special condition in agreement binding seller
to do this before completion. Difficult to find, could be expensive (payment and legal fees), and
tipping off PWB excludes possibility of insurance.
4. If PWB cannot be found or is unreasonable, then apply to Upper Tribunal under s.84 LPA 1925 for
waiver, discharge or modification of restrictive covenant. Time consuming (several months – could
be problem for completion date), expensive and no guarantee of success, so very impractical.
*indemnities are not good solution because: (1) relies on solvency of person giving it and (2) requires you
to trace this person which is difficult after time passes of indemnity being given.
Past non-continuing breach
1. PWB unlikely to establish any loss, therefore nothing needs to be done other than checking with
seller if any complaints were made by PWB. If so, advise based on ICU (insurance, consent, upper)
Future Breach - what are clients planning or doing which will breach covenant (i.e. external alterations,
client wants to build shed). If they do so without PWB consent, this will lead to future breach.
1. Get quote for restrictive covenant insurance policy, but because future breach, risk is higher
therefore more expensive (must comply with S.19(1) FSMA)
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, 2. If insurance is not available (due to high risk and therefore high premium), then approach PWB to
request release of covenant. Payment and legal fees. Also, difficult to find.
3. Apply to Upper Tribunal
2. Positive Covenants
Check for indemnity covenant in Proprietorship register, as they don’t run with the land.
Past Breaches
Remedy: Buyer putting a special condition in contract to require remedy breach before completion
or by a price reduction of the amount needed to remedy breach. Price reductions, however, need
to be reported to lender, therefore easier to put in condition
Future breach (or non-remediable past breach)
Insurance
Consent/Release from the PWB
NO application to upper tribunal available
3. Past and Future breaches Insurance – who pays?
Where you are dealing with restrictive covenants imposed by the same conveyance (i.e. with the same
PWB) the buyer and seller need to proceed with the same remedy for past and future breaches even if the
breaches are in relation to different covenants.
This is because if seller has got insurance for past breach, and later you approach PWB consent for future
breach of same covenant or different covenant in conveyance, this invalidates the insurance as it includes
condition to not contact PWB.
Options:
Take out a single policy covering both the past and future breaches and come to an agreement with
the seller as to how to split the premium
Risk breaching the covenant without having insurance and hope that the PWB will not take action
(which most lenders will not usually permit); or
Not to proceed with the deal.
When discussing insurance policies say: s.19(1) FSMA prohibits arranging or advising a client on the merits
of in a particular insurance policy unless authorised or exempt.
4. Mortgages
Legal mortgage over registered property must be registered in Charges Register, otherwise mortgagee will
not obtain legal interest and third parties will take free of mortgage.
Entries: Two entries are made in charges register, (1) date of mortgage deed and date of registration, (2)
name and address of the mortgagee. A restriction will also be made on proprietorship register, to stop any
changes being made (such as new mortgage or easement) that will reduce value.
Lender’s Restriction does NOT mean that the lender’s consent is required for the sale of the WHOLE of the
property. However, the lender’s consent IS needed for a sale of PART of the property (to release the part
being sold from the mortgage)
Buyer must buy the property free of the seller’s mortgage as otherwise the buyer will be bound by the
seller’s mortgage. Therefore, it must be discharged on, or shortly after completion of purchase.
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