In unregistered land, in what three situations could assume the land is held as joint tenants?
- If there is no memorandum of severance
- If there’s no bankruptcy order
- If there is a conveyance which states the beneficial ownership status
Tell me about leases. When are they legal?
Legal leases must be made by a deed (unless less than 3 years in which case they can be made orally) and registered if they are over 7 years.
For leases above 7 years they must be noted against the landlord’s title. It is good practice to also do this for leases 3-7 years.
If the landlords title is unregistered, legal leases will be an overriding interest on first registration.
How do postive covenants pass in common law vs equity?
At common law, the burden of a positive covenant never passes. The benefit of a positive covenant can pass if it: touches and concerns the land and if the benefit was intended to run with the land.
In equity, the benefit of positive covenants can pass if its annexed (expressly or impliedly) or its expressly assigned at the time of transfer. The burden of positive covenants can only pass in equity under Halsall v Brizell under the doctrine of mutual benefit and burden.
How do restrictive covenants pass in common law vs equity?
In common law, the benefit of a restrictive covenant can pass in same way as positive covenants - so they must touch and concern the land and there must be intention to run with the land. The burden does not pass at common law.
In equity, the benefit of a restrictive covenant passes if its expressly/impliedly annexed, assigned at time of transfer or part of a building scheme. The burden of a restrictive covenant can pass in equity under Tulk v Moxhay. So.. 1) The covenant is negative/restrictive in nature.
2) It benefits the land retained by the covenantee.
3) The original parties intended the burden to run.
4) The purchaser had notice of the covenant (actual, constructive, or imputed).
In registered land, this usually means the covenant must be protected by entry on the register.
What’s an enforcement notice (I.e against planning permission breaches?) Then what’s a stop notice?
An enforcement notice is used if someone has breached planning permissions or health and safety regulations.
- It should set out the breach.
- It can require restoration.
- It can impost conditions/limitations.
- 28 days to comply.
- Can be appealed.
A stop notice is served after an enforcement notice. It requires a specified activity to be stopped. It cannot be appealed
What are some options available to a buyer if they discover breach of a planning permission/building regulation?
- Withdraw from transaction.
- Obtain indemnity insurance for financial loss (won’t cover PI or Death for breach of building regs)
- Obtain retrospective planning permission.
- Obtain a regularisation certificate.
What is an easement? There are requirements for something to be capable of being an easement.
- The dominant and servient land must be owned by two different people.
- The easement must accommodate the dominant tenement. It has to make the land more valuable, convenient or useful. It cannot purely benefit a business, be purely recreational or depend on specific characteristics of a landowner.
- It must lie in grant and be similar to existing forms of easement.
What is an easement? How can an easement be created?
Easements are rights attached to the land. They allow a person to use land belonging to someone else. They can either be granted or reserved.
It can be created expressly and impliedly. It can also be created by prescription - 20 years free use.
- Express
To be created expressly and to be a legal easement, it must be created by deed and registered.
To be created expressly and be an equitable easement, it’s essentially a legal express easement gone wrong so still in writing and signed by grantor.
- It can be created impliedly in 4 ways:
A - Necessity (rights of way)
B - Common Intention (easement is essential to achieve specific common purpose)
C - Wheeldon v Burrows: For grant of easements only. Where a quasi-easement was enjoyed by a landowner before the land was split.
D - s62 LPA - regularly used easements are implied into a conveyance
How are easements enforced?
A legal easement must be created by deed and registered in order to bind a new owner. For unregistered land, a legal easement is effective at law and will bind successors even without registration, provided it has been validly created.
Equitable easements also need to be registered to bind a new owner. For registered land, this is via a notice in the charges register. For unregistered land, this is a Diii land charge.
How can you be discharged/released from covenants?
- You will automatically be discharged when land becomes merged.
- Covenants can be discharged, modified or released by agreement.
- Covenants can be impliedly discharged if there’s no action taken when breached.
Think of some steps for buyers solicitor to do before exchange.
- Confirm receipt and satisfaction of search results, enquiries and survey. Make sure the lender is satisfied with the legal ownership and condition of the property.
- Advise buyer on building insurance requirements.
- Ensure deposit funds are ready and lenders solicitor has approved the title certificate.
- Report fully to the buyer on title and any concerns.
- Get the contract signed by the buyer and decide on a completion date.
- Obtain explicit authority to exchange contracts.
What is a seller’s checklist before exchange?
- Obtain a redemption figure to ensure loan payoff. This is relevant if there’s an outstanding mortgage on the property. It’s a figure saying the exact amount required to pay off a mortgage in full.
- Address any outstanding enquiries and disclose relevant info.
- Secure explicit authority to exchange contracts.
What happens straight after exchange?
- Memorandum of exchange is prepared and a copy of the signed contract is kept.
- Ensure buyer has insurance bc risk has now passed to them
- Start making arrangements for completion
What form is used for requisitions of title? What does it include?
TA13 and it sets out:
- Vacant Posssession
- Deeds and documents to be sent on completion
- Method of completion and undertakings
- Amount payable
- Mortgages and undertakings to redeem
What are pre-completion searches to do?
- OS1/OS2 - offers 30 day priority period
- K15 Land Charges search for unregistered land - grants 15 day priority period
- Solvency searches (K16 bankruptcy search/Company Search)
- Personal Inspection
Completion process?
- BS receives mortgage funds and balance of money
- BS sends money to SS.
- SS confirms receipt of funds and dates transfer deed
- BS confirms completion to buyer and buyer can collect keys
- SS sends transfer deed and other docs to BS
Post completion steps?
- submit SDLT return within 14 days
- Register charge with Land Registry within 21 days
- LR application (AP1) including (where applicable):
Transfer deed, Payment of SDLT, DS1 form, Mortgage deed, Certificate of Registration at CH, Death certificate, Marriage certificate - LR application for first registration (FR1):
• Transfer deed, Payment of SDLT, DS1 form, Mortgage deed, Certificate of Registration at CH, Death certificate, Marriage certificate, Epitome of Title, Land Charges searches, Chain of title
• Must submit within two months of completion or transaction is void
Requirements of a lease?
- Exclusive possession
- Fixed term or periodic tenancy
- Formalities - deed for over three years, lease longer than 7 years must be registered
- Reversion at end of term
What’s special about alienation?
For all leases, an absolute or qualified covenant is converted into a fully qualified covenant. So the landlord’s consent cannot be unreasonably withheld. Nothing has to trigger this. The landlord must provide their decision in reasonable time and by written notice.
What’s a s25 notice?
What’s a s26 notice?
What’s a s27 notice?
