Summary
Summary Cheatsheet for Accelerated LPC - Freehold and Leasehold Property Law and Practice
- Module
- Property Law And Practice
For the A&O Accelerated LPC. Freehold and Leasehold notes. Top of the cohort, received 96%
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PLP Part 1 Cheat Sheet [Conveyances up to completion]Remember to do class work and learn how to calculate interest etc.
STAGE I: PRE-EXCHANGE
Issue 1: Right of way
[1] Does the property abut public highway or need to access private road?
[A] Check Property Register and see whether the land enjoys a right of way
If yes – means that there is a private road
If no – see whether there is a public highway abutting or property risks being landlocked
o Since most properties abut the public highway there is no need for private right of way to be
enjoyed
[B] Check CPSE reply on whether there is a private road
[C] Verify with local authority – Enquiry 2.1(a) of CON 29 search
If a road is omitted from the reply on the public highways, it means that it is a private road
[D] Also do a Highways Search to identify the exact boundary between the public highway and private land
[2] IF private road – check whether due to be adopted
Look at enquiries 2.1(b) to (d) of CON 29 to see if any road is due to be adopted and if so:
o A) who will be responsible for making private road to standard of public highway
o B) who will pay for such works
Advice to buyer:
[A] cost/ risk of future adoption: warn that cost of such adoption works can be very expensive and may be
borne by ‘frontagers’ (owners of properties fronting private road) which can include the buyer once it has
purchased the property
o Even if CON29 results show no plans to adopt the private road, warn buyer of the risk of being
obliged to pay for the ‘making up costs’ in case the council resolves to adopt the private road in the
future
[B] adequacy of private road? For the purposes of the buyer specifically
o If not adequate, buyer needs to negotiate a deed of variation of the easement with the owner of the
private land – likely to have to pay consideration and this is not guaranteed
[C] does buyer need to maintain private road?
o See if property register says anything – such as enjoyment of right of way being subject to paying a
‘fair proportion of the cost and repair and maintenance’ of the public road
o Ask seller historically how much has been paid (in last three years, or if lack info on that period,
going before that)
Check CPSE replies on this too
o Also ensure that buyer’s surveyor has checked condition of private road to establish whether
maintenance required
[D] ensure right of way has been correctly registered on burdened land
o (i) check SIM to see neighbouring properties and whether registered
o (ii) [registered land] check the official copies of the neighbouring property owning the private road
in question to see if the burden has been registered against that title in Charges register
If it is – then right enforceable by buyer against burdened land owner!
o (ii) [unregistered land] check if caution against first registration had been entered against the
unregistered land – if not, then need seller’s solicitor to register
Or risk burdened land getting sold and new owner not being bound by burden of
easement
But if land is unregistered on SIM – no title number so will not be able to find out owner of
burdened land this way!
Issue 2: Covenants
Positive covenants
[1] Enforceability?
[A] check charges register – but also state that burden does not run with the land
[B] But look at Proprietorship Register to see whether an indemnity covenant was given by seller when
property bought
, o If so – buyer expected to give similar indemnity covenant and will be contractually bound by positive
covenant (SCPC 7.6.5) – incorporated into contract
o [Note: TR1 which buyer executes will also contain indemnity covenant]
[2] Has seller breached positive covenant – if so, what remedies are available?
Check if seller breached under CPSE replies
[A] if possible, get seller to remedy it
o Put a special condition into the contract requiring the seller to do this
o Recall that might need listed building consent/ PP/ building regulations approval
[B] can negotiate a price reduction
o But buyer’s lender needs to be informed of price reduction – so easier to get seller to remedy in [A]
above
[C] if cannot remedy – get the seller to take out insurance
o But remember PCR concerns that cannot give specific advice on insurance policy if not authorised
following s19(1) FSMA
[D] if insurance too expensive – try to get retrospective consent from person owning land with benefit of
positive covenant (PWB) might have to pay PWB
Restrictive covenants
[1] Enforceability?
[A] check charges register for presence of restrictive covenant
[B] will automatically bind buyer since they ‘touch and concern the land’ pursuant to Tulk v Moxhay
[2] Remedies
[Scenario 1] Continuing past breach of seller
[A] Get the seller to buy restrictive covenant insurance at its expense and include that as a special condition
in contract binding seller to do this before completion
o To insure buyer and future owners of land against possibility of PWB bringing action
o Insurer will consider (in determining price + whether to insure):
Date of breach
Date of covenant
[B] Only if above fails then get retrospective consent from PWB
[C] If both don’t work, apply to Upper Tribunal (Lands Chamber) to have restrictive covenant removed/ varied
as obsolete under s84(1) LPA 1925
[Scenario 2] Past non-continuing breach of seller
Check with seller if any complaints have been made – if not, unlikely PWB will be able to establish any loss
[Scenario 3] Planned future breach by buyer
[A] Buyer has to obtain restrictive covenant insurance itself – taking into account same above factors the
insurer will consider
[B] If not, try to get PWB to release/ modify RC; possibly will get charged
[C] If not, apply to Upper Tribunal (Lands Chamber) under s84(1) LPA 1925
Remember that for insurance
S19(1) FSMA prohibits carrying out of ‘regulated activity (which includes the ‘specified investment’ (s22 FSMA
)of insurance in (Art 75 RAO) unless authorised or exempt
So if not authorised, cannot advise client on the merits of acquiring a particular insurance policy – or must get
authorisation
Issue 3: Mortgages/ other charges on Charges Register
[1] Is there a mortgage?
Refer to the charges register
If there is – is an issue to buyer because mortgage will have to be redeemed by seller and removed from
Charges Register or buyer will buy property subject to the mortgage
Note: mortgagee’s consent pursuant to such a restriction normally only required when there is a sale of part/
some other disposition that will not lead to the mortgage being discharged in full
[2] Removal of mortgage/charge on charges register
[1] buyer’s solicitors can obtain From DS1 from seller solicitors immediately after completion and submit to
Land Registry along with application to register buyer as new owner OR
, o Should ask for undertaking from S’ solicitors to:
[a] forward to seller’s lender such sum from the completion monies as is required to
discharge the mortgage once received from buyer
[b] forward to buyer the DS1/ evidence a e-DS1 has been filed at Land Registry, once
received from the lender
[2] seller’s lender’s solicitor can send e-DS1 direct to Land Registry when it receives sufficient money from the
seller to pay off loan after completion
See below on completion as well
Issue 4: Planning Permission
Building works
Step 1: is consent/ permission needed?
Planning Permission
[A] Does it fall into development under s55(1) TCPA – carrying out of building on over or under land
Includes (under s55(1A)):
o Demolition, rebuilding, structural alterations and other operations normally undertaken by
builders
Does not include (under s55(2)):
o (a) works which affect only interior/ do not materially affect external appearance AND do not
provide additional space underground
o See act for full exceptions
[B] If development – prima facie, planning permission required (s57(1) TCPA)
[C] if not conservation area – then check GDPO and see if planning permission automatically granted under Sch 2
Part 2 (Art 3(1) GDPO) because permitted development so do not need to apply
[D] But if conservation area – note that Art 4 Direction might be given by LPA such that even if GDPO excludes
need to apply for planning permission, still need to apply for planning permission!
Might also have stricter conditions attached even if planning permission is granted – remember to
request a copy of the PP to see conditions from seller!
If breach condition – can enforce from 10 years starting from date of breach
o Note that date is of breach not date that PP was given – and some conditions take effect some time
later so PP being given more than 10 years ago does not absolve the buyer/ seller of liability
necessarily!
[E] Step 2: If breached – can enforce from 4 years starting from substantial completion of works
If breached condition – can enforce from 10 years starting from date of breach
Building regulations approval
Required if building works done
Must get original Building Regulation Completion Certificate on completion to show that local authority
signed off building works as complete to an acceptable standard
Step 2: If breached –no time limit for enforcement
Listed Building consent – see if DESIGNATED as listed building!
Listed building consent needed for internal/ external building works if affect building’s character as building
of special architectural or historical interest
But also check the date where building designated as listed building – if works done before this then will be
okay
Step 2: If breached – no time limit for enforcement
Step 2: did seller obtain it?
Check LLC1 to see
o which planning permissions have been granted and
o whether area is conservation area
o Whether there have been any Art 4 directions
Check CON 29 to see if
o There have been consents that have been applied for and refused in addition to those that have
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