What does the property register tell us?
- Describes property - first entry in property register including address and reference to title plan
- Describes rights benefiting the property - entry 2 –> extracted on property register ALL info is provided so NO NEED to request to see original conveyance that created the right, will fully describe with reference to the filed plan in OC copy
- less commonly the entry will not extract the right but will instead refer to it with the wording ‘the land has the benefit of the right contained in a deed dated…’ –> IMPERATIVE TO OBTAIN COPY OF DEED - apply to land registry for filed copy, unless seller has sent copy as part of their deduction of title
What issues need examining re ROW?
- ROW is an aspect of the property register and as such is revealed by examination of the title plan.
- You need to check if the property ABUTS A PUBLIC HIGHWAY in which case no issue to report to buyer.
- If plan shows does not abut public highway –> is there a RoW?
- ADEQUACY- (on foot only?, purpose?, time restrictions?)
- MAINTENANCE - ask seller if made any contributions? LAST 3YEARS. If none, must still warn buyer of possible future costs –>
- ADOPTION - LA will maintain BUT if road not of adoptable standard buyer may have to contribute to raising to adoptable standard
n. b CON29 SEARCH REQUIRED TO SEE IF ROW is to be made up by LA with costs to be reclaimed by frontagers - CON29 question 2.1(c) - if ROW named here then MUST report future costs liable to buyer
REGISTRATION - benefit is registered against property register of dominant land BUT not enforceable unless ALSO REGISTERED as a CHARGE against the title of the 3RD party’s title over which the ROW passes.
IF charge not registered then must apply for CAUTION AGAINST FIRST REGISTRATION against 3rd party’s title!
n.b. the above ALSO applies to ALL kinds of EASEMENTS that BENEFIT PROPERTY –>
another e.g.
Does property benefit from a right to lay pipes?
- Adequacy?
- Maintenance?
- Adoption?
Water Industry Regulations 2011-
Private sewers and lateral drains are responsibility of statutory undertakers. - Registration?
Is right to lay pipes registered as charge against 3rd party land? If not must apply for caution against first registration.
What is your role as buyer’s sol?
- Spot issues
- Report to client
- Provide client with solutions
What does the proprietership register show?
- Class of title
- Who the owner/s is/are
- Restrictions affecting the owner’s right of disposal
- Indemnity covenant
Discuss quality of title.
Title absolute = LR is satisfied that no other owner exists. Essentially a guarantee from LR. If it transpires that title is defective after all - buyer can recover damages.
Other classes =
n.b. with these banks highly unlikely to accept mortgage on property.
- Qualified
- Possessory
- Good leasehold
What are the types of registered proprietor, i.e. the types of seller?
- Individual
- Company
- Joint owners - Joint Tenants or
- Tenants in Common
- Personal rep
Note things to bare in mind re individual seller.
-Individual must sign CONTRACT and TRANSFER DEED
Issue spotting: if individual has died - would be PR! Whose name will not appear on Proprietorship reg so need to obtain OFFICIAL COPY OF GRANT OF REPRESENTATION)
Note things to bare in mind re company seller.
- Will get company name AND number
- Issue spotting = company name (solvent?) - to ensure same company due to potential that co has changed name since purchase SEARCH against company number!
NEW NAME must be the one used on contract and transfer deed.
Must also send certificate of change of name to LR.
Notes re joint owners.
What is the issue of one is dead?
- If both alive - both must sign.
- How do we tell how equitable interest held? If hold as TIC there will be an entry with the wording: RESTRICTION no disposition by a sole proprietor….is to be registered…unless authorised by the court
- If one JT has died, then their equitable interest passes under their will and may not t/f pass to the surviving legal owner with the legal estate.
- The surviving owner must t/f overreach the beneficial interest.
Seller MUST PROVIDE:
DEATH CERTIFICATE of deceased JT.
Certified copy of DEED OF APPOINTMENT OF 2ND TRUSTEE.
Purchase monies to two trustees will override deceased’s beneficial interest.
Surviving TIC and Trustee MUST sign Transfer!!!
N.B. LR will also need to see Death Certificate and Deed of appointment of 2nd trustee.
IF JTs and one JT dies - legal and equitable ownership pass to surviving JT.
SELLER MUST provide: death certificate and LR will want to see an official copy of death cert NOT a photocopy.
Issues re personal representative seller?
- Check OCs to confirm identity of registered proprietor.
- Obtain official copy of GRANT OF REPRESENTATION (only given when death certificate produced)
- LR needs to see official copy of GRANT OF REP.
They will execute contract and transfer deed.
What does the Charges register deal with?
- It details interests the buyer will be bound by, which are of two classes:
- Interests registered in the charges register
AND - Interests overriding registered dispositions (i.e. that override even if not registered against title)
What are the common entries in charges register?
- Mortgages
- Restrictive covs
- Positive covs
- Easements and leases
How do mortgages appear on the registers?
- Charges register with two entries:
1) detailing the charge
2) naming the proprietor of the charge
This will also be registered in the Proprietorship reg as a restriction against disposition of prop w/o lenders consent HOWEVER if sale of whole no consent is needed as mortgage will be discharged on sale.
CONSENT OF LENDER ONLY REQUIRED if PART of prop being sold, leaving the charge diminished?…
How do RCs appear on the register?
- Either fully extracted
or - with reference to the conveyance it was created in - in which case the deed needs to be obtained
What are the issues re RCs?
- Past breach continuing? Future intended breach?
e. g. not to make alterations w/o consent of vendor….
EXAM TECHNIQUE
Issue? RC burdening land
Why? Past breach continuing, or future intended use - PWB can sue
Solutions? Insurance, consent from PWB, Upper Tribunal
Which is best and why? Insurance!
What must you remember re the option of insurance for resolving RC issues?
- May not be available if RC very new as insurer will worry that PWB very likely to discover/ wish to sue.
OLDER THE COVENANT CHEAPER THE INSURANCE
- Don’t tip off PWB.
- FSMA!!!! cite conduct issues
What needs to be considered where there is past continuing and future breach?
Remedies for past and future breaches must be the same! e.g. if try to obtain PWB consent for future, this may tip off past cont breach that you would otherwise choose to insure against.
What are issues which need spotting re positive covenants?
- As these only bind individuals not the land, indemnity covenants will need to be entered into…a chain of indemnity covs will exist.
How do we know the seller entered into an indemnity covenant?
It will be an entry on the Proprietorship register. Date will correspond to the date in the entry naming owners.
What are issues which need spotting re positive covenants?
- As these only bind individuals not the land, indemnity covenants will need to be entered into…a chain of indemnity covs will exist.
How do we know the seller entered into an indemnity covenant?
It will be an entry on the Proprietorship register. Date will correspond to the date in the entry naming owners.
N.B. IF NO ENTRY RE INDEMNITY COVENANT IN PROPRIETORSHIP REG THEN BUYER WILL NOT BE BOUND BY INDEMNITY COV CHAIN and can IGNORE the POSITIVE COVENANT!
Identify nature by ‘hand in pocket’ test. Need to make expenditure to perform cov? = PC
In what case can a buyer ignore a positive covenant?
Where there is no INDEMNITY COV entered in the PROPRIETORSHIP REG the buyer will not be bound to observe any positive covs and the seller will remain liable!
What are the options to remedy pos cov breaches?
Existing breach?
- Request seller remedy before sale
- Reduction in price
Not capable of remedy?
- Insurance
- Release from PWB
Future breach?
- Warn buyer of enforcement!
- Insurance
- Release from PWB
n.b. Upper Tribunal has o jurisdiction as is private matter
What act do you need to look at re interests that override a registered disposition?
What are the three main interests you need to know?
LRA 2002 schs 3 and 12.
- Easements - i.e. still binding even though not registered as charge against servient land (servient land here is that which the buyer is buying obvs..bound by someone else’s rights)
- Leases
- Interests of persons in actual occupation
What nature of non-legal easements can override?
- Easements acquired by prescription etc
- Sch 12 = transitional provisions = allows that which was overriding prior to LRA 2002 to continue to be; ‘equitable easements still override if created before LRA 2002 and are openly enjoyed’
What types of leases are overriding?
Para 1 sch 3 LRA 2002 provides leases under 7 years DO NOT need to be registered at LR nor against title - it will bind anyway.
Para 12 of sch 12: leases of not more than 21 years granted before LRA 2002 will override
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Registered property: title investigation54
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Planning and pre-contract searches and enquiries31
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Drafting the contract and exchange of contracts31
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Pre-completion, completion and post (registered land)31
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PCR, FSMA and MLR8
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Chapter 10 revision tips15
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Unregistered land sgs 634
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Notes from chapter 126
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Lecture 2 notes37
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Drafting45
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Lecture 4 - Pre-completion steps14
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Lecture 4 - completion, post completion and remedies15
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FSMA and RAO lecture4
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Security of tenure32
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Contents of a lease35
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Contents of a lease part 217
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Rent review, alienation and LL licences29
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Crim lit lecture 112
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Crim Lit Lecture 226
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Crim lecture 312
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Civ Lit 1,2,322
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Civil Lit SGS 13
