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SQE 1 > Property Law 3 > Flashcards

Property Law 3 Flashcards

1
Q

What are the standard searches that a solicitor must carry out?

A
  • “Local search” – enquiries of the local authority (CON29) and search of the local land charges (LLC1)
  • Drainage and water enquiries
  • Desktop environmental search
  • Chancel repair liability

Depending on type of title/seller:

  • land charges search (unregistered land)
  • search of the index map (unregistered or registered land subject to mineral rights)
  • companies search
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2
Q

What are the optional searches?

A
  • CON29O (including commons registration search)
  • Highways search
  • Coal mining search
  • Cheshire Salt
  • Tin, clay and limestone
  • Phase I/Phase II survey
  • Flood search
  • Utility providers
  • Railways – overground, underground, crossrail or HS2
  • Waterways
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3
Q

Who does a solicitor approach for searches?

A

The National Land Information Service

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4
Q

What searches are included in the ‘local search’?

A
  • The local land charges search [or LLC1]
  • the local authority enquiries being the standard enquiries using CON29 form and the optional enquiries using CON29O form
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5
Q

What is covered by the Local search CON29?

A

reveal information about the property and its immediate surroundings, such as:

  • planning consents, refusals and completion notices
  • building regulations
  • roads and public rights of way (such as footpaths)
  • Environmental notices (including contaminated land notices)
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6
Q

What is covered by the Local search CON29O?

A

These are optional searches

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7
Q

What is covered by the Local search LLC1?

A

A search of the local authority’s register of local land charges. For example:
planning permissions that have been granted

  • planning enforcement or stop notices
  • article 4 directions (restricting the General Permitted Development Order)
  • tree preservation orders
  • smoke control orders
  • financial charges such as road-making charges
  • conservation areas
  • listed building status
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8
Q

What are the standard forms for pre-contract enquiries of the seller?

A
  • Property information form (Form TA6) – contains information about boundaries, alterations, work done, neighbour disputes, occupiers, utility providers, location of utility meters, etc
  • Fittings and contents form (Form TA10) – items that are included or not in the sale, such as curtains, light fittings, carpets, etc
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9
Q

Can the seller deliberately mislead the buyer?

A

No - A misleading statement may give rise to an action in misrepresentation.

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10
Q

What is the inference if the seller responds “Not so far as the seller is aware”

A

A seller who answers in this way can be taken to have made reasonable investigations in the matter (William Sindall plc v Cambs)

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11
Q

What pre-contract searches may be carried out that relate to the title or seller?

A
  • Search Index Map (SIM) - unregistered / more than one title - shows extent of title.

-Mapsearch - similar to SIM but not guaranteed

  • Central Land Charge Search (form k15) - unregistered land search against the full name of seller and all previous owners referred to in the epitome of title.
  • Bankrupcy search
  • Company search
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12
Q

When is planning permission not required?

A

Planning permission is needed whenever there is development on land, unless it falls within certain exceptions, such as:

  • building works that only affect the interior of the building; or
  • building works that do not materially affect the external appearance of the building; or
  • changes of use that are within the same use class (s3(1), The Town and Country Planning (Use Classes) Order 1987
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13
Q

What is Sui Generis when it comes to use classes?

A

Miscellaneous

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14
Q

What does a General Permitted Development Order do?

A

Allows certain development without planning permission

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15
Q

If a proposed development is in line with the General Permitted Development Order does that mean its OK?

A

No - need to check whether the local authority has opted out.

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16
Q

How can one check that a planned development is either not a ‘development’ or falls within General Permitted Development Order?

A

Apply for a certificate of lawfulness - note, this is not planning permission but confirms the proposal falls outside the requirement for planning permission.

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17
Q

What is required to demolish, alter or extend a listed building?

A

Listed building consent

18
Q

What is the effect of having a home in a conservation area?

A
  • The GPDO will be restricted, so changes to external appearance may require planning permission
  • In England, planning permission is needed to demolish an unlisted building within a conservation area
  • In Wales, conservation area consent is needed to demolish an unlisted building within a conservation area (conservation area consent in England was abolished in 2013)
  • Consent is needed to cut back or cut down trees
19
Q

What effect do building regulations have?

A

Before carrying out work covered by the regulations, building regulations consent is needed.

20
Q

What is a breach of planning control?

A

development has taken place without planning permission; or a condition or limitation of planning permission has been breached

21
Q

What are local authority’s enforcement options for breach of planning control?

A

Enforcement notice

Stop Notice

Breach of condition notice - Similar to enforcement notice, but only concerned with breach of conditions or limitations to planning permission

Injunction - Local authority can apply to court for an injunction, but it is discretionary, and local authority needs to show good reason

22
Q

How does an enforcement notice work for breach of planning control?

A

Local authority gives 28 days’ notice that:

  • land must be restored to condition it was in before unauthorised development; or
  • comply with any conditions or limitations imposed by planning permission

After 28 days, land owner may be fined, and the local authority can enter the land to carry out the work, recovering its expenses from the land owner

23
Q

How does a stop notice work for breach of planning control?

A

Local authority can serve a stop notice only after serving an enforcement notice – requires that specified activity (for example, an unauthorised use) stop immediately

Cannot prohibit
- use as a dwelling house or
- any activity that has been carried out for more than four years

24
Q

What are the enforcement time limits for breach of planning control?

A

4 years

  • Building works – starting with the date on which the building works were “substantially completed”
  • Change of use to single dwelling house – starts with the date the use was begun

10 years

  • Other changes of use
  • Breach of planning condition
25
Q

What happens if a breach of planning control has been deliberately concealed?

A

Where a breach of planning control has been deliberately concealed, the local authority can apply to a magistrates’ court for a planning enforcement order.

26
Q

What are local authority’s enforcement options for breach of building regulations?

A

Prosecution

Enforcement notice

Injunction

27
Q

What are the time limits for persecution for breach of building regulations?

A

six months after discovering breach to prosecute the person responsible for the breach in the Magistrates’ Court. Unlimited fines may be imposed.

Prosecution may take place up to two years after completion of the building work.

28
Q

What are the time limits for an Enforcement Notice for breach of building regulations?

A

one year after completion of the building work to serve an enforcement notice.

Similar to a planning enforcement notice, this gives the land owner 28 days to alter or remove the work. Again, if the land owner fails to comply, the local authority can undertake the work at the land owner’s expense.

Injunction -If the work is unsafe, then there is no time limit.

29
Q

What are the options available for a buyer on discovering a breach of planning or building regulations?

A

Withdraw from transaction

Invite seller to regularise matters before completion

  • retrospective planning permission for development;
  • regularisation certificate for works that did not have building regulations approval but otherwise comply.

Obtain indemnity insurance (usually at seller’s expense) for breaches of planning or building regulations.

However, only covers financial loss for enforcement.

For breaches of building regulations, buyer should be advised of health and safety risk, and policy will not cover claims for personal injury or death.

30
Q

What are the standard seller enquiries protocol forms for commercial property?

A

CPSE1 - Applies to all commercial property transactions,

CPSE2 - Applies where the property is subject to commercial tenancies (for example, the purchase of an office block or an industrial estate)

CPSE3 - Applies on the grant of a new lease (for example, when acting for a tenant on an industrial estate)

CPSE4-6 - Applies to specific other circumstances (less commonly used)

31
Q

What is covered by CPSE1 (for commercial property)?

A

Covers such matters as:

  • responsibility for boundaries, and their extent
  • rights benefiting and burdening the property
  • access to the property
  • physical condition
  • contents
  • utilities and services
  • planning and building regulations
  • occupiers and employees
  • notices and disputes
  • Value Added Tax (VAT) treatment
32
Q

What are the standard seller enquiries protocol forms for residential property?

A

TA6 Property information form - Always used.

TA10 Fittings and contents form - Always used. Identifies any fittings and contents included or excluded in the sale. Also identifies those fittings or contents that the buyer may buy in addition to the property.

TA7 Leasehold information form - Used where the property is a long leasehold (eg, a flat on a 99 year lease)

TA8 New home information form – used where the property has been newly built

33
Q

What does TA6 Property information from (for residential property) cover?

A

Always used. Covers such matters as:

  • boundaries
  • rights benefiting and burdening the property
  • disputes, complaints and notices
  • alterations
  • planning and building regulations
  • occupiers
  • services and utilities
  • energy efficiency
34
Q

What are the standard terms that limit the buyers ability to rescind the contract for misrepresentation?

A

An error or omission only entitles the buyer to rescind the contract:

(a) where it results from fraud or recklessness, or

(b) where the buyer would be obliged, to his prejudice, to accept a property differing substantially (in quantity, quality or tenure) from that which the error or omission had led it to expect.’

Damages are only available where there is ‘a material difference between the represented and the actual description or value of the property’

35
Q

Is the Law Society Conveyancing Protocol suitable for new build homes?

A

No

36
Q

Which Solicitors MUST adopt the Law Society Conveyancing Protocol

A

Solicitors who are members of the Law Society’s Conveyancing Quality Scheme

37
Q

What does the Law Society Conveyancing Protocol apply to?

A

Residential transactions of freehold and leasehold property.

38
Q

When using the Law Society’s Conveyancing Protocol, which list accurately sets out what the solicitors agree to adopt?

A
  • Standard Conditions of Sale (incorporated into the contract),
  • Property Forms,
  • Formulae for exchange,
  • Code for Completion by Post.
39
Q

Within what period should the seller’s solicitor update responses to enquiries under the Law Society Conveyancing Protocol?

A

The seller’s solicitor should confirm and update, where necessary, replies to enquiries if completed more than two months earlier

40
Q

Does the seller have to deal with enquiries that do not comply to the protocol?

A

No - The seller’s solicitor should only attend to the Property Forms and any additional enquiries that are essential to the transaction.

41
Q

What are the consequences of breaching the protocol if a solicitor has signed up to it?

A

If a solicitor breaches the Protocol, then the Law Society may require an explanation, potentially leading to their being monitored and even removed from membership of the Conveyancing Quality Scheme.

SQE 1 (149 decks)

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