Flashcards in Drafting Deck (40):
Which legislation governs the form of property contracts?
Law of Property Act 1989
What are standard form contracts?
Contracts which contain standard conditions and special conditions.
Why are standard form contracts necessary?
Because many matters relevant to the sale of land will be common in all transactions.
What are the two sets of standard conditions?
Standard conditions of sale -used in residential transactions
Standard commercial property transactions -used in more complex commercial transactions
What does SCS stand for?
standard conditions of sale
What does the SCPC stand for
standard commercial property conditions
What are special conditions?
Used for two things:
1. amend standard conditions in both SCS and SCPC
2. may deal with specifics not covered by standard conditions
What are tailor made contracts?
They are the law firm's precedent contracts.
They are tailor made and are sometimes more suitable for complex commercial property transactions.
The clauses in tailor made contracts may vary or supplement standard conditions.
Comment on what should be filled in for the date section of the contract.
Must be left blank until the exchange of contracts takes place.
Once the exchange of contracts takes place, the dates are filled in and it becomes a legally binding document whereby the parties are bound to completion.
Comment on what should be filled in for the seller section of the contract.
Get information from title documents.
Must check seller has legal personality.
Seller should be name of individual or company and not a partnership since it doesn't have legal personality.
Although, there can be a maximum of four individual partners listed as the seller.
Comment on what should be filled in for the buyer section of the contract.
-Full names of all the buyers and
-their addresses (max four).
If it is a company then:
-number and -registered address.
Comment on what should be filled in for the property section of the contract.
Take description from property register from the full copies and describe rights attaching to land.
Comment on what should be filled in for the property section of the contract if it is a:
sale of whole property
sale of a part of property
Sale of whole: provide description as in property register
Sale of part: Refer to title plan
Unregistered: use description of property in previous conveyance
Comment on what should be filled in for the title number and root of title section of the contract if:
Root of title
If registered: take title number from the title documents
If unregistered: find details of the conveyancing constituting the root of title
Comment on what should be filled in for the specified incumberances section of the contract.
You would simply write: ‘Specified incumbrances: the matters set out in entry 1 (restrictive covenants) of the Charges Register of title number XXXX’
Basically, you are referring to the restrictive covenants or easements.
Do not note any mortgages on the contract.
Comment on what should be filled in for the contract rate section of the contract.
It refers to the interest for late completion.
Usually is between 3-5% per annum. Anything higher must be changed.
*see law society's interest rate.
What happens if you see title problems during the investigation stage?
If it isn't possible to remedy defect, seller should disclose the problem in the contract using a special condition, revealing the nature of the defect.
This ensures that the buyer excepts the defect and will raise no objection to it. aka Faruqi clause.
Comment on what should be filled in for the purchase price section of the contract.
Total sum payable including :
Comment on what should be filled in for the deposit section of the contract.
10% of purchase price
Comment on what should be filled in for the title guarantee section of the contract.
Full means seller has the right to sell the property, and can guarantee that property is free from all charges and encumbrances except:
those already disclosed in the contract s. 6(1) LP MP A 1994
those buyer could not reasonably known about s3(1) LP (MP) A 1994
Limited means no guarantee by seller the property is free from all third parties, but he can guarantee that he has not created any incumberances over the land and is not aware of anyone else doing so. This may be a trustee, personal representative or person who has little knowledge about the property.
No title guarantee: must be stated in special conditions part of the contract.
Comment on what should be filled in for the completion date section of the contract.
If left blank, standard conditions of sale provisions will apply.
This means that completion date must happen within 20 working days of the exchange and by 2pm.
Adding a completion date would override this standard provisions.
Comment on what should be filled in for the contents price section of the contract.
This is to separate chattles from the overall price of the property to avoid paying for SDLT on chattles
Comment on what should be filled in for the balance section of the contract.
purchase price less
What is the Faruqi clause and when is it used?
It is used to address defects in title where the seller may be missing information or document.
Once the problem is disclosed in the standard conditions and the buyer signs, it means the buyer accepts the defect and takes no objection to it.
Comment on what you would include for chattles in the special conditions for SCS and SCPC.
In SCS: start a new page and include all contents and a list
In SCPC: if you don't amend the pre printed you can create a new special condition to specify purchase price of chattle and detials. then make sure to change price on front page.
Comment on what you would include for the occupier special condition in SCS and SCPC.
Why is it needed?
The occupier special condition is a document signed by the occupiers (who aren't the sellers) confirming that they agree to waive their interest and agree to vacate on completion.
In the SCS this is included in the pre printed section and in the SCPC it must be drafted as a separate document.
Comment on what you would include in the special condition if there is a planning permission which needs to be obtained.
Why is it needed?
Conditionality on Planning Permission must include:
nature of the PP sought
whose job it is to apply for it and when
if granted, when does completion occur?
if denied how to rescind and who gets deposit?
What are the five things you need to consider when drafting a contract?
What is the obligation/issue?
Who is performing the obligation? (buyer or seller)
When is the obligation to be performed by (completion date)?
How will be it be performed?
Where will this be inserted in the contract?
What do you need to consider when drafting conditional clauses in a contract?
Include a timetable for satisfaction
Include a trigger for completion and a long stop date (i.e. when the parties can walk away if condition is not satisfied)
what is a long stop date?
when parties can walk away if condition is not satisfied.
Is VAT payable by the buyer in addition to the purchase price? explain.
It is not payable to the buyer in addition to the purchase price SCS/SCPC 1.4 unless:
Building is a new commercial building (less than three years old)
Election made by buyer to charge VAT (seller must be VAT registered); and
Part 2 condition A1 is expressly incorproated in SCPC; or
Contract specifically confirms it is VAT payable SCS
ex. the seller confirms that it has not opted to tax VAT on the Property and neither will it do so on or before the completion date
Give examples of other points arising from investigation of the official copies or searches which may be included in a special conditions section.
Seller must purchase a restrictive covenant indemnity policy before completion.
Seller must obtain missing planning permission/building certificate by completion.
What would you add in the special conditions section if you are only selling part of the property?
Sale of part will create new easements and covenants.
Include a standard condition on Express easements to benefit or burden, buyer or seller.
Include a standard condition on Express covenants that will be imposed on the buyer or seller.
Make sure implied easements are excluded.
Which SCS/SCPC will allow a seller to demand a special condition in the contract to the effect that a buyer agrees to give an indemnity covenant to the seller (such covenant to eventually be contained in the purchase deed)?
Specify which entries in which registers of the official copies for the buyer makes this a reasonable demand by the seller.
SCPC 6.6.4 and SCS 4.6.4 state that in order for a new purchaser to be bound by any existing covenants, the new buyer must give an indemnity covenant. This ensures that the positive covenants in question will be bound to the new buyer even though it doesn't run with the land.
The land registry will make an entry on the proprietorship register under the names of the registered proprietors.
What is an indemnity covenant?
A seller will remain liable to a positive covenant if he was a) the original coventor or b) he promised to comply when he bought the property.
If the seller wants the new buyer to continue complying, then he will request this though an indemnity covenant to be put in the purchase deed and in the proprietorship register.
This means that the purchaser will need to pay for any costs to the seller if seller suffers loss resulting from breach.
Is value added tax relevant to residential property?
Is the sale of the freehold of a new commercial building subject to a standard VAT rate?
Yes any building that is 3 years old or less is subject to a standard VAT rate of 20% of the purchase price.
Seller must ensure that the price is stated to be exclusive of VAT, otherwise the seller will pay.
Is the sale of old commercial buildings and leases subject to VAT?
No it is not payable on the purchase price or any rent if it is a sale of an older free hold building more than 3 years old and if it concerns the granting of a lease.
Do owner or tenants of a lease have the option to tax? explain.
For old commercial buildings and leases owners or tenants of a lease can execise the option to tax.
This means all supplies in connection with the building is sold subject to 20% standard rate VAT. The price in contract must be expressed exclusive of VAT.