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2023 > Property Practice - Freehold > Flashcards

Property Practice - Freehold Flashcards

1
Q

Pre-contract Searches and Enquiries

What six searches and enquiries are required for every property?

The buyer’s solicitor is at the heart of conveyancing process. He must find out as much about the property as he can before exchange.

A

a. Survey and personal inspection.
b. Local search.
c. Water and drainage search.
d. Pre-contract enquiries of seller.
e. Environmental searches
f. Flood search

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2
Q

Pre-contract Searches and Enquiries

Provide 8 searches and enquiries for particular properties and transactions.

A

(a) Chancel repairs search
(b) Mining searches
(c) Canal and River Trust search
(d) Commons search
(e) Railways
(f) Highways
(g) Unregistered land searches
(h) Company search

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3
Q

Pre-contract Searches and Enquiries

What is the local land search comprised of?

Three searches/enquiries

A
  • Local land charges search
  • Standard enquiries of the local authority
  • Optional enquiries
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4
Q

Pre-contract Searches and Enquiries

What does the local land charges search (LLC1) show?

A

Details of any financial charges or restrictions on land imposed by public authorities under statute.

E.g. planning consents, tree preservation orders and conservation orders.

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5
Q

Pre-contract Searches and Enquiries

What do the standard enquiries of the local authority (CON29) show?

A

Information on planning permissions and restrictions on permitted development. Also: whether the land has been designated as contaminated land, and liability for road repair.

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6
Q

Pre-contract Searches and Enquiries

What is the main purpose of the Water and drainage search?

If the property does not drain into a public sewer, who will be liable for the costs of maintaining the drains and sewers?

A

To establish whether drains and sewers are ‘adopted’ by the water company, therefore not the owner’s responsibility.

The buyer.

Buyer may also be required to bring the drains/sewers up to adoption standards if the water authority decides to adopt them.

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7
Q

Pre-contract Searches and Enquiries

Why is it important that environmental searches are carried out?

A

The buyer’s solicitor could be found negligent if property is found to be contaminated.

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8
Q

Pre-contract Searches and Enquiries

If property is adjacent to a river or canal, what search is required and why?

Searches/Enquiries for particular properties and transactions

A

The Canal and River Trust search because:

(a) buyer needs to be aware of liability for repairs/maintenance of waterways, banks and tow paths.
(b) it will show if the property has been affected by flooding in the past.

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9
Q

Pre-contract Searches and Enquiries

What two land searches are necessary for any purchase of unregistered land?

A

Index Map Search, Land Charges Department search against seller and previous owners.

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10
Q

Pre-contract Searches and Enquiries

A company search will be relevant where…
It is carried out at…
It will confirm:

A

…the seller is a company.
…Companies House
- Whether seller has capacity to enter the contract;
- Identity of current officers of the company;
- Whether any fixed/floating charges need to be discharged on completion.

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11
Q

Pre-contract Searches and Enquiries

For whom and against whom is a bankruptcy/insolvency search conducted?

Where the borrower is an individual, what form is used?

A

For the lender, against the borrower.

Form K16.

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12
Q

Pre-contract Searches and Enquiries

Why would a highways search be conducted if CON29 already provides information about roads adjoining the property?

A
  • Enquiries about verges and pavements.
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13
Q

Preparation for and Exchange of Contracts

What are the two sets of standard conditions

A
  • Standard Conditions of Sale (SC)
  • Standard Commercial Property Conditions (SCPC)
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14
Q

Preparation for and Exchange of Contracts

In both the SC and SCPC it is necessary to specify all ____ otherwise the ____ will be in breach of SC 3.1.2 (or SCPC 41.1).

A

Incumbrances; seller.

(such as restrictive convenants, easements and obligations)

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15
Q

Which incumbrance must the buyer’s solicitor ensure is not included?

A

Seller’s mortgage.

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16
Q

Preparation for and Exchange of Contracts

(1) A seller should sell with full title guarantee if…

(2) A seller should sell with limited title guarantee if…

Title Guarantee

A

(1) …they own the entire legal and equitable title.

(2) …they have limited knowledge of the property (e.g. as an executor or trustee)

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17
Q

Preparation for and Exchange of Contracts

(1) With both full title guarantee and limited title guarantee, the seller impliedly covenants that: (3 guarantees)

(2) With only the full title guarantee the seller impliedly covenants that:

(3) Contrast this, to the limited title guarantee version which guarantees only that:

Title Guarantee

A

(1)

a. They have the right to dispose of the land;
b. They will do all they reasonably can to transfer title; and
c. In case of leasehold, the lease is subsisting at the time of disposal and there is no breach of covenant making it liable to forfeiture.

(2) The land is disposed free from incumbrances other than those the seller does not know about and could not reasonably know about.

(3) the seller has not incumbered the property and is not aware that anyone else has done so since they acquired the property.

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18
Q

Preparation for and Exchange of Contracts

Full title guarantee is a guarantee that the land is disposed free from incumbrances other than those the seller does not know about and could not reasonably know about. However, s.6 of the Law of Property (Miscellaneous Provisions) Act 1994 limits the covenant to exclude:

Title Guarantee

3 matters

A
  • matters to which the disposition is expressly made subject;
  • matters which the buyer knows about at the time of disposition;
  • matters which were entered on the registers at the time of disposal.
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19
Q

Preparation for and Exchange of Contracts

The contract rate is the rate of interest that will be…
The interest is charged on…

Contract Rate

A

…charged if a party is late in completing.
…the purchase price, excluding any deposit already paid.

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20
Q

Preparation for and Exchange of Contracts

Both the SC and the SCPC provide that a 10% deposit of the purchase price is payable on exchange of contracts to the seller’s solicitor as… This means that…

However, if using the SC, the seller is allowed to…

Deposit: Stakeholder and agent

A

…stakeholder. This means that the seller’s solicitor cannot hand it over to the seller until completion.

…use the deposit as a deposit on a related purchase of a house for the seller.

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21
Q

Preparation for and Exchange of Contracts

The parties can vary the default arrangement of seller’s solicitor as stakeholder. They can agree that the solicitor holds as agent. This means that…

Deposit: Stakeholder and Agent

A

…the deposit can be released to the seller immediately after exchange and can be used by the seller for whatever purpose.

This is riskier for the buyer, as if either party fails to complete the seller may not be able to return the deposit (e.g. where seller is insolvent).

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22
Q

Preparation for and Exchange of Contracts

Under both the SC and SCPC, risk of damage to the property passes to the ____ on exchange.

Insurance and Risk

A

Buyer.

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23
Q

Preparation for and Exchange of Contracts

VAT is not normally chargeable in …

Meanwhile, contracts for the sale and purchase of ____ should deal with whether the buyer will have to pay VAT in addition to the purchase price. VAT is payable when the building is ____ or because the seller has ____

Basics of VAT in a contract

A

…residential transactions.
…commercial property.
…less than 3 years old.
…exercised the option to tax.

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24
Q

Preparation for and Exchange of Contracts

In the sale and purchase of commercial property, what are the three possible ways of drafting the contract terms with respect to VAT?

VAT in commercial contracts

A

(a) The purchase price is exclusive of VAT and VAT will be added on top.
(b) The purchase price is inclusive of VAT so that VAT, if any, cannot be added on top.
(c) The purchase price is exclusive of VAT, so VAT can be added on top if the law changes to make an exempt supply chargeable at the standard rate, but seller is contractually obliged not to opt to tax.

25
Q

Preparation for and Exchange of Contracts

A seller is selling a new commercial property (i.e. less than 3 years old).
A seller is selling an old commercial property, but wants to exercise the option to tax, to recover VAT paid on refurbishments, and the buyer is not VAT-sensitive.

In both these cases, how will the contract be drafted with respect to VAT?

VAT in commercial contracts

A

(a) The purchase price is exclusive of VAT and VAT will be added on top.

26
Q

Preparation for and Exchange of Contracts

If the seller does not have input VAT to recover on an old commercial building, or the buyer is VAT-sensitive, which two ways could the contract be drafted?

Which one of these is riskier for the seller and why?

What three entities are typically VAT-sensitive and why?

A

(b) Purchase price is inclusive of VAT.
(c) Purchase price is exclusive of VAT in the unlikely event that the law changes to make an exempt supply chargeable at the standard rate, but the seller is contractually obliged not to opt to tax.

(b) is riskier because the law might change to make the exempt supply a standard-rated one, meaning the seller would need to take the VAT out of the agreed purchase price and pay it to HMRC.

Banks, Building Societies and Insurance companies are typically VAT-sensitive because they only make exempt supplies (so VAT on the purchase price will not be recovered).

27
Q

Preparation for and Exchange of Contracts

You act for Kerrier Investment PLC. Kerrier agrees to buy Shatfesbury House from Cranbourne Limited as an investment propety for a purchase price of £300,000 exclusive of VAT. Cranbourne hasn’t opted to tax. Their solicitor has sent through a contract incorporating SCPC.

Cranbourne bought the site in 2011 and the construction of a retail building on the site was completed in 2014. The lease of the first tenant has expired and Shaftesbury House will be sold with vacant possession.

What is the VAT status of this transaction and how should the contract be drafted?

A
  • Sale of old commercial property = exempt, subject to option to tax. Cranbourne has not opted to tax.

A fair position is for the parties to agree that Kerrier will not be liable to pay VAT in addition to the purchase price, unless the VAT status changes between exchange and completion due to a change in the law = (c) Purchase price is exclusive of VAT in the unlikely event that the law changes to make an exempt supply chargeable at the standard rate, but the seller is contractually obliged not to opt to tax.

28
Q

Preparation for and Exchange of Contracts

(1) Is a solicitor likely to be able to act for a lender and borrower in a commercial transaction?

(2) The lender, in both residential and commercial transactions, will require a certificate from their solicitor that the property has…

(3) In particular, this certificate will confirm three things:

(4) What redress does the lender have if the certificate is wrong?

(5) When is the certificate given? The buyer’s solicitor will not ____ until they know the lender is satified with the certificate and disclosures.

A

(1) Unlikely, as the terms of the mortgage is unlikely to be on standard terms, and will require negotiation.

(2) “Good and marketable” title.

(3)
- no legal problems with the property;
- who will own the property after completion;
- completion date when funds are required of lender.

(4) Lender can sue the firm which gave the certificate.

(5) Immediately prior to completion of loan; exchange contracts.

29
Q

Preparation for and Exchange of Contracts

(1) In preparation for exchange, what are the first 4 steps required of the buyer’s solicitor?

(2) What else needs to be in place before exchange of contracts?

(3) In terms of the exchange itself, both solicitors must ensure that their clients have… Can this be done by the solicitor, on the client’s behalf?

(4) What do the solicitors need to discuss with the client and the other side, in advance of exchange?

A

(1)

(a) Report to client the results of title investigation, searches and enquiries, contract terms and mortgage offer.
(b) Report to lender to confirm that the title is “good and marketable”
(c) Ensure deposit funds are available in cleared funds, ready to send on exchange.
(d) Check mortgage offer is in place and that client has sufficient funds to complete.

(2) Buyer’s insurance as risk passes to buyer on exchange.

(3) Signed their copy of the contract. Yes, if with client’s express authority.

(4) Completion date.

30
Q

Exchange of Contracts; Practice, Method and Authority

Before exchange, both solicitors must obtain…

The clients should be made aware of…

For a contract of the sale of land to be binding, it must: (4 conditions)

A

(1) …their client’s authority to exchange.
(2) …the fact that they can no longer withdraw from the contract after exchange.
(3)

i. Be in writing;
ii. Incorporate all the agreed terms;
iii. Have those terms contained in one document, or in each copy of the contract where exchanged;
iv. Signed by the parties (usually by each signing their copy of the contract)

31
Q

Exchange of Contracts; Practice, Method and Authority

What are the three ways in which exchange of contracts can be done?

A
  1. In person
  2. By post
  3. Telephone
32
Q

Exchange of Contracts; Practice, Method and AuthorityTelephone

When exchanging by telphone, are the Law Society Formulae A, B and C mandatory?

Telephone: Law Society Formulae

A

No, but if used, they involve undertakings, breaches of which will result in disciplinary action.

33
Q

Exchange of Contracts; Practice, Method and AuthorityTelephone

(a) When is Formula A used? What are the undertakings?

(b) When is Formula B used? What are the undertakings?

(c) When is Formula C used?

Telephone: Law Society Formulae

A

**Formula A:
**
When both parts of the contract are held by one solicitor, because the other side has already sent their client’s signed part prior to exchange.

Undertakings: The solicitor will send their client’s signed part to the other side on the same day.

If it is the buyer’s solicitor, they undertake to send the banker’s draft or client cheque for the agreed deposit.

**Formula B: **

When each holds their own client’s signed part.

Undertakings: Each holds their client’s signed part; and each will send their signed part to the other side on the same day.

Buyer’s solicitor: banker’s draft or client cheque for agreed deposit.

**Formula C:
**
When there is a chain transaction.

34
Q

Exchange of Contracts: Consequences

The seller retains legal title until completion but…

A

…holds the beneficial interest on behalf of the buyer.

35
Q

Pre-Completion Steps

What are the 4 main tasks of the solicitors at the Pre-completion stage?

A
  1. Prepare transfer deed.
  2. Pre-completion searches.
  3. Practical arrangements for completion.
  4. Ensure finances are in order for completion.
36
Q

Pre-Completion Steps: Transfer Deed

Section 52 of LPA 1925 states that the transfer of a legal estate in land must be by deed. To be valid in law, the ded must: (3 conditions)

Where executed by a private individual, the signature must be…
The three ways that a company may execute the ded are:

A
  1. (a) Make clear that it is a deed.
    (b) Be signed by both parties.
    (c) Be delivered.
  2. …witnessed by an independent witness.
  3. (a) company seal
    (b) signed by director and secetrary or two directors, expressed to be executed by the company.
    (c) Signed by single director in presence of a witness who then attests.
37
Q

Pre-Completion Steps: Transfer Deed

Which party always executes the transfer deed?
When would the buyer also need to execute it?

If registered land, what form is used to transfer the whole freehold estate?
If unregistered land, it will be subject to…

A

The seller.
If they are entering into an obligation or making a declaration e.g. beneficial interest under trust.
TR1.
First Registration.

38
Q

Pre-completion searches

Pre-completion searches are generally carried out by the buyer’s solicitor, as close to the completion date as possible. What are the four reasons why they are carried out?

A
  1. To ensure the seller hasn’t futher encumbered the title since investigation of title took place.
  2. Check financial circumstances of borrower, when acting for the lender.
  3. Gain priority for the buyer (and lender) over anyone else making an application before the buyer registers.
  4. If seller is a company, to check that the company has not gone into liquidation.
39
Q

Pre-completion searches

(1) What form is used for the pre-completion search if the whole property is being sold? What about if part of the property is sold?

(2) These are Land Registry searches, made against the title number to check if any new entries have been made since the “search from” date. What is that date?

(3) What will the results of the search (OS1R or OS2R) confer on the applicant?

(4) The buyer will take free from subsequent entries between the date of search and the end of that period, provided that…

Registered Land

A

(1) OS1, OS2.

(2) “Search from” date = Date that officlal copies were produced.

(3) A “priority period” of 30 working days from the date of the search result.

(4) The buyer submits their application for registration within that 30 day priority period.

To be precise, on (4), they must submit for registration at 12 noon on the last day of the priority period.

40
Q

Pre-completion searches

(1) What search is made for unregistered land, and on what form?

(2) The result of that search confers on the applicant…

Unregistered Land

A

(1) Land charges search on form K15.
(2) a priority period of 15 working days from the date of the result.

The K15 search is usually done as a pre-exchange search, but will need to be done just before completion as well, unless the transaction can be completed with the priority period of the pre-exchange K15 search.

41
Q

Pre-completion searches

(1) Registered Property: Acting for the lender, what search will the solicitor apply for, against whom, and on what form?

(2) Unregistered Property: What form already deals with this?

(3) In the case of registered land, why do most solicitors consider it unnecesssary to do a bankcruptcy check against an individual?

Checking buyer’s solvency for the lender

A

(1) A “Bankruptcy Only” land charges search against the buyer, using form K16.

(2) K15.

(3) Because s.86(5) Land Registration Act 2002 provides that where there is no notice/restriction relating to the bankruptcy, a buyer for value acting in good faith without notice of the bankruptcy takes good title from a bankrupt seller.

42
Q

Pre-completion searches

What priority period does the company search provide?

Company search against the company search

A

None.

43
Q

Pre-completion Steps: Practical Arrangements for Completion

The buyer and seller agree practicalities for completion using a ____ . Importantly, this contains an undertaking that…

A

Completion information form.
Undertaking: the seller’s solicitor will redeem (pay) the mortgage out of the completion money, thus discharging the mortgage.

44
Q

Pre-completion Steps: Finances for Completion

Prior to completion, the buyer’s solicitor must ensure they have received both…

A

…the mortgage advance from the lender and the balance from the buyer.

These should then be sent to the seller solicitor’s bank account and will notify the seller solicitor that the money is on its way. Once received, completion will take place.

45
Q

Completion: Methods and Effect

Upon receiving the completion money, the seller’s solicitor will complete the transaction by…

The two most common ways to complete a property sale and purchase transaction are:

A

…dating the TR1.

In person and by post.

Only after TR1 has been dated by the seller’s solicitor, the lender’s solicitor will date the mortgage deed, officially granting the mortgage over the property.

46
Q

Completion: Methods and Effect

Under the Law Society’s Code, which solicitor acts as agent for the other? At what cost?

Law Society Code for Completion by Post

A

The seller’s solictor acts as agent for buyer’s solicitor at no cost.

47
Q

Completion: Methods and Effect

Under the Law Society’s Code, the seller’s solicitor undertakes to…

On receiving the completion money, the seller’s solicitor carries out the instructions of the buyer’s solicitor and completes the transaction. What happens next?

Law Society Code for Completion by Post

A

…carry out the buyer’s solicitor’s instructions.

The seller’s solicitor sends the documents to the buyer’s solicitor by first-class post or document exchange.

48
Q

Post-completion steps: Discharging seller’s mortgage

(1) Once the seller’s lender receives the amount required to redeem the mortgage, they will do one of three things:

(2) If one of the electronic forms of discharge are carried out, the seller’s solicitor will not send a DS1 form to buyer’s solicitor but will instead…

A

(1)
- Complete Land Registry form DS1 and send to the seller’s solicitor for onward transmission to the buyer’s solicitor;
- submit e-DS1 electronic discharge.via Land Registry portal;
- send a message through the Electronic Dischage system, which automatically removes the charge.

(2) …send the buyer’s solicitor confirmation that notice of discharge has been given to the Land Registry.

DS1 - Discharge form.

49
Q

Post-completion steps: SDLT/LTT

Once the seller’s solicitor sends TR1 to the buyer’s solicitor, the latter will arrange for SDLT/LTT to be paid.SDLT is paid to HMRC within…

A

14 days of completion.

LTT is 30 days.

HMRC will then produce SDLT5 as proof that the tax has been paid.

50
Q

Post-completion steps: Registration of new charge at Companies House

If buyer is a company purchasing with a mortgage, the lender’s solicitor will register the charge at Companies House within…

Can this time limit be extended?

Failure to register will render the charge…

A

21 days of completion.

Not without a court order.

…void against any liquidator, administrator and creditor of the borrower’s.

51
Q

Post-completion steps: Land Registry Application

(1) After SDLT is paid, what form does the buyer use to register as proprietor? (and lender uses the same for registering as proprietor of th charge)

(2) If the seller used DS1 for the discharge of their mortgage, what will the buyer’s solicitor need to do to discharge it? What about if an electronic form of discharge was used?

(3) In full, what are the documents to be submitted to the Land Registry (4 documents)

(4) Application DI will also be completed, which sets out…

(5) If the buyer has created a new mortgage, what three documents will be needed?

Registered Land

A

(1) AP1.

(2) Apply for the mortgage to be discharged. Nothing needs to be done for electronic forms: automatically discharged.

(3)

  • Certified copy of the transfer
  • Fee
  • SDLT/LTT certificate
  • DS1 (if used)

(4) The overriding interests burdening the title.

On (4) those overriding interests will be entered on the register and will thus cease to be overriding interests.

If the buyer has created a new mortgage, the following documents also must be sent:
- certified copy of mortgage deed.
- certified copy of certificate of registration issued by Companies House (if buyer is a company)
- Solicitor’s/lender’s written confirmation of mortgage deed copy

52
Q

Post-completion: Land Registry application

Application for first registration must be made within…

The Registrar wil lneed all documents that formed the evidence of title. Conveyancers have the option of lodging first registration applications made up entirely of… whereas non-conveyancers must submit…

Unregistered Land

A

Two months after completion (FR1)
…certificed copy deeds and documents
…the originals.

53
Q

Post-completion: Land Registry application

AP1 and FR1 forms relating to properties of more than £5000 require details of…

A

…the conveyancer acting for each party, or the party’s identity, where they are not represented.

54
Q

Remedies for delayed completion

(1) If the exchanged contracts do not contain the date for completion, what is the default date for completion?

(2) In both the SC and SCPC, the money due on completion must be paid before… If it is paid e.g. one hour later than that, completion is treated as having taken place…

(3) If one party is late in completing, is there an immediate right for the non-defaulting party to terminate or rescind the contract?

A

(1) 20 working days after the date of contract.
(2) 2pm on the day of completion. If it is paid later than that, completion is treated as taking place on the next working day.

(3) No, time is not of the essence.

Parties can vary the completion time.

55
Q

Remedies for delayed completion: Contractual Compensation

Both sets of standard conditions provide for compensation to be paid, with one significant distinction:

Following exchange of contracts incorporating SC, the buyer delays completion by three days. The contract rate is 4.75%, the purchase price is £300,000, the buyer has paid 10% deposit.

Calculate the compensation payable by the buyer.

A

SC - both parties can be asked to pay compensation.
SCPC: Only the buyer can be required to pay compensation.

4.75% x £270,000 = 12,825 divided by 365 = £35.13 per day.

£35.13 x 3 = £105.41 due.

If the non-defaulting party was at fault for some of the period, those days are ignored.

56
Q

Remedies for delayed completion: Common Law Damages

Damages are awarded for losses that… as well as for any reasonably foreseeable…

If the seller has received contractual compensation, will they be prevented from claiming damages for damages on the basis of breach of contract?

A

naturally flow from the breach, as well as reasonably foreseeable consequential loss.

No.

E.g. wasted legal costs, costs of renting another property.

57
Q

Remedies for delayed completion: Notice to complete

If delay in completion is unlikely to be resolved quickly, either party may serve a notice to complete. What are the effects of the notice?

If the defaulting party is the buyer, and they fail to complete with that time limit given in the notice, will the seller be able to keep the deposit? What if the defaulting party was the seller?

A

It makes time of the essence and gives the other party 10 working days to complete.

Yes. If the defaulting party was the seller, they would need to repay the deposit to the buyer.

If the other party fails, the party serving the notice can rescind the contract.

58
Q

Remedies for delayed completion: Rescission

Other than upon failure to comply with a notice to complete, when will rescission be allowed?

A

When the seller made an error/ omission that resulted from fraud; recklessness; or serious misrepresentation whereby the property is substantially different from what they had expected.

2023 (23 decks)

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