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SQE2 total > Property > Flashcards

Property Flashcards

1
Q

FSMA regulation regarding mortgages

A

Giving advice on a regulated mortgage contract is a regulated contract which needs FSMA authorisation
Do not need authorisation for generic advice about mortgages, but arranging, advising on, or arranging the execution of a mortgage are regulated activities

–> otherwise look if s327 exception applies

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2
Q

mortgage types

A

repayment
interest
sharia

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3
Q

in how many days is SDLT/LTT payable

A

14d for SDLT
30d for LTT

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4
Q

first time residential buyer tax

A

SLDT is discounted if purchase price is under 625k

If selling a property, may be exempt from CGT if it was their main residence and not used for business at any part and garden under half hectare

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5
Q

purchase of property interview checklist

A

1) financing (mortgage) (act for both?)

2) enquiries needed (remember if old factory may be contamination = environment)
a) any private roads/waterways? who owns, will it go public, costs to contirbute?

3) will VAT be taxed? what can be done

4) are there tenants in occupation, any incumbrance that sticks out and slows down conveyance

5) how do you want equitable title to be held

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6
Q

is it dead set that cant act for borrower and lender in commercial transaction?

A

not dead set but depends mostly if its on standard terms or certificate
- explain that if everythin’s agreed; both parties likely to have common interest
- but easy for disagreement to start and in that case would have to stop acting for lender

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7
Q

what are the criteria for root of title to be valid

A

1) show legal and equitable interest (whereas and beneficial interest respectively)

2) must have a recognisable description of land

3) root must do nothing to cast doubt on title (proper execution + stamp duty paid)

4) should be at least 15 years old

  • fifth criteria not mandatory but ideal for transaction to be with 3rd party who gives consideration
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8
Q

what to do when you recieve the epitome of title

A

make sure the chain of ownership is unbroken (legal estate always transferred by deed, if PRs responsible for sale there needs to be grant of probate available)
+ each doc must have description of land

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9
Q

where to find artcle 4

A

LLC1 search

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10
Q

what does the local search show

A

LLC1: charges and restrictions imposed by the local authorities, conservation areas and TPOs

CON29: planning permission, development restrictions, land contamination, coal authority searches and road repair liability

CON290: common rights and hedgerow notices

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11
Q

what happens if a road is not public and next to your prop

A

no automatic right to use - need to check if there’s easement or make private arrangemens for use (ask seller what they used to do)

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12
Q

what’s the point of a TPO

A

criminal offence to remove a tree that is subject to it

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13
Q

what does full title guarantee mean

A

seller has right to dispose of land + will do all reasonably can to transfer title + land is being sold free from incumbrances other than those the seller does not know of and sale is already subject to

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14
Q

what does sale with limited title mean

A

similar to full title but seller covenants to not have encumbered the property and not know of any one else doing it since last sale (covenant)

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15
Q

wording if you want to alter deposit

A

X% above BASE LENDING RATE, changed from time to time

!! if you say X% above law society…. that would mean like 8%

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16
Q

what to do with standard condition 5 (completion time)

A

remove it if completion is at the standard 2pm time (because provides for NON standard time)

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17
Q

what to do with special condition 6

A

says no reliance should be placed on representations not in writing - be careful if buyer is particulalry relying on something that was said to him

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18
Q

what’s special condition 7 important for

A

if theres a 3rd party right (like FLA) or someone living there atm- states that non-owning adult occupier agree to the sale and to give vacant possession and release of any rights they may have

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19
Q

what do you write in ‘specified incumbrances’ in 1ts page of contrac

A

the main matters that will bind buyer (eg mine and mineral, indemnity cov)

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20
Q

thing to remember if there is a content price

A

need to add special condition about it

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21
Q

rule for deduction of title in underletting/sublease

A

reg. freehold: cannot deduce but can simply look at Open Registry like normal title investigation

headlease with absolute title: no need to look at freehold (just need lease + official copies)

unreg. headlease: cannot deduce but can ask for pervious 15y assignments
–> if sublease is over 7y, that’s the only time can ask to deduce

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22
Q

rule for deduction of title in assignment

A

general rule is that you must always deduce title from leasehold. question is whether you also need to deduce from freehold?

assignor’s lease with absolute title: no need to deduce freehold

assignor’s lease good title: reg. land simply look at open registry
unreg. land: ask for epitome/root of title

assignor’s lease is unreg: entitled to call for lease and all assignments in past 15y but NO deduction of freehold title

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23
Q

how does tenant get absolute title when registering lease

A

when the freehold is registered
(otherwise can obviously still register but probably lesser title - good title = satisfied leasehold is sound but no access to superior title)

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24
Q

what does it mean to be registered with good title?

A

that lease is sound but no superior title

–> means registrar does not guarantee the lease against defects in the freehold, or that the freeholder has the right to grant lease

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25
Q

why is it important to add special consideration for content price paid separately

A

because SDLT is not paid on that consideration

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26
Q

wording to appoint 2nd trustee

A

For the purpose of giving valid receipt for purchase price, the seller will appoint another person to act as second trustee in the sale of the property and procures that person to enter into the transfer

The second trustee will sell with no title guarantee

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27
Q

wording if seller wants to remove a fixture

A

the X (identify fixture) shall be removed by the seller prior to the sale

the seller shall be liable for the price of removal

The seller shall not be required to make good any damage caused by the removal

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28
Q

wording if there’s a missing covenant (or something the seller will give indemntiy to)

A

the property is sold subject to covenants in a (explain conveyance where covenant comes from). The buyer accepts that neither the original conveyance nor a certified copy or examined abstract thereof can be produced and shall raise no objection or requisitioning respect thereof.

the seller sells with no title guarantee in this respect

prior to completion, the seller shall make necessary payments (will at their own expense) to ensure Defective Title Insurance Policy in respect of the missing covenant located on entry 1 of the Charges Register on the Official Copies from Title NG12345 is adjusted to cover the current purchase price of the Property of £440,000. (and will hand over the policy to the buyer at completion)

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29
Q
A
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30
Q

wording in TR1 if buyers are tenants in common in unequal shares

A

The Transferee is more than one person and they are to hold the property on trust for themselves alone as tenants in common in the following unequal shares:
A) X to X
C) Y to Y

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31
Q

what to do in TR1 if buyer entering indemnity chain

A

add in the additional provision box

the transferee agrees with the transferor to:
a) (by way of indemnity only) observe and perform the covenant in Entry XOXO of the Charges Register of Title XXX so far as they are subsisting and capable of taking effect; and

b) to indemnify the transferor against any liability incurred for breach or non-observance of the Covenants occurring after this date of transfer

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32
Q

who can witness the TR1

A

anyone but its preferable that its not someone who is also part of the transaction

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33
Q

special quirk to remember when buyer is company (in TR1)

A

make sure that you put the registered office address in the ‘transferee intended address for service’ box and not their new property address (as you normally would in a residential transaction)

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34
Q

what do you add in TR1 when its assignment

A

The transferee covenants to indemnify the transferor against any liability for any future breach of the tenant’s covenants in the Lease and to perform such covenants from and after the date of this transfer. (this is AGA)

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35
Q

when is completion (typically)

A

20 working days after exchange

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36
Q

when does the seller’s signature must be witnessed in deed

A

if theyre an individual
(if theyre a company, normally do need 2 people anyway)

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37
Q

who executes the TR1 in assingment

A

the original tenant and the new tenant

NOT the landlord

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38
Q

pre-completion incumbrance search on both reg and unreg land

A

OS1 (or OS2) and K15 respectively
(for unreg land will get answers on K18)

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39
Q

how to check buyer’s solvency

A

in reg land need to do K16 form, in unreg land it will be shown on the K15

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40
Q

when does legal title pass

A

in unreg land on completion

in reg land when title is registered at land registry

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41
Q

post completion checklist

A

1) discharge seller’s mortgage (DS1 = buyer must apply for it to be removed, or e-DS1 = automatically removes it from register)

2) pay SDLT within 14 days

3) register the newt mortgage (at CH within 21d and at land registry within OS1 priorty period)

4) register new land owner (OS1 within prioty period, unreg land within 2 months)

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42
Q

whats the best repair covenant for your tenant client

A

‘Keep in repair/good condition and clean and tidy, except the Tenant shall not be required to put in a better state of condition than at the date this Lease was granted, as evidenced by the Schedule of conditions agreed and signed by both parties’

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43
Q

provisions to ensure relating to insurance clause in rent

A
  • landlod reinstates it to its full value and covenants to complete any shortfall from its own funds
  • rent suspension during period where property is not fit for occupation
  • landlord can ask for insurance rent
  • landlord covenants to use all proceeds from the insurance for the reinstatemnt of the property
  • termination if property cannot be reinstated
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44
Q

drafting rent suspesion re insurance

A

‘If the Centre is damaged by an Insured Risk, payment of the Rent shall be suspended until the earlier of:
* the date on which the Centre has been reinstated so as to make the Property fit for occupation and use and accessible; and
* the date which is [three] years from and including the date on which the damage occurred.

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45
Q

covenant to use proceed of insurance for reinstatement drafting

A

‘the Landlord shall, subject to obtaining all necessary planning and other consents, use all use all insurance money received (other than for loss of rent) to reinstate the Centre. If the Landlord reasonably considers that it is impossible or impractical to reinstate the Centre, the Landlord may terminate this lease by giving notice to the Tenant whereupon any proceeds of the insurance shall belong to the Landlord / Landlord and Tenant proportionate to the values of the irrespective interest

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46
Q

thing that may be missing in clause about rent

A

apportionment of 1st instalment

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47
Q

relevant assumptions in open market rent

A

a) willing landlord and tenant
b) A tenancy of the whole
c) vacant possession
d) Without a fine or premium
e) that there is a rent review clause
f) that all the clauses of the lease are the same (except rent),
g) the length of the hypothetical lease will be specified
h) That the property is in a state wherein the tenant has complied with their obligations, and in a state of full restoration

However: if tenant wants greater protection:
The landlord has fully complied with its obligations under this lease unless that Landlord is in persistent and material breach of its obligations in this lease, the tenant has notified the landlord of the breaches, and the landlord has failed to remedy the breach within a reasonable time

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48
Q

things to be disregarded in open market rent review

A

a) no account given to the fact that it would be inconvenient for the tenant to relocate
b) any goodwill attached to the property by reason of any business carried out there by the tenant
c) Any effect to the rent attributable to the physical improvements to the property carried out by the tenant with all necessary consents and without obligations from the landlord.

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49
Q

what’s the special things about user covenants

A

no implied provision that upgrades it to fully qualified

if landlord consents, cannot increase rent as a condition!

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50
Q

what are common conditions for underletting/subletting

A

1st that undertenant is desirable commercially and financially

  • underlease should mirror headlease
    -annual rent should be at least as high
    -rent must be reviewed at the same time
  • LTA must be excluded
  • tenant must directly covenant to perform the tenant’s covenants excluding the covenant to pay rent

–> if conditions are breached, headlease will be at risk of forfeiture

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51
Q

who drafts a lease in subletting/assignment

A

landlord

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52
Q

whats the point of a licence to underlet

A
  • formalises landlord consent (key otherwise headtenant will be in breach of alienation covenant
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53
Q

what does a licence to underlet include

A
  • landlord’s consent
  • direct covenant from tenant to landlord (to perform all covenants in lease aprt from rent BUT if the headtenant doesn’t pay rent, after 14 clear days the landlord can ask the undertenant to pay rent to them instead => direct covenant allows landlord to sue under tenant via privity of contract for breaches)
  • agreement for headtenant to pay landlord’s costs
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54
Q

must a lease be made by deed

A

yes to be legal

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55
Q

is SDLT payable on lease (subletting also)

A

yes, on VAT inclusive amount of premium + rent

no SDLT if premium is under 150k (taxed at 0%)

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56
Q

is SDLT payable on assignment

A

usually not, but could be if the new tenant has paid a premium (will then be charged on premium only)

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57
Q

whats an upwards only open market rent review and how you know

A

when the rent to be payable is described as always the greater of the current rent and the market rent estimated

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58
Q

things that will benefit the tenant in an open market rent review

A

that the review is done in shorter periods but this is only beneficial if its an upwards and downwards variation (if its only upwards will jsut keep going up and not account for any decrease in the market)

59
Q

can landlord charge premium for assignment?

A

yes UNLESS specifically says assignment is permitted in lease

60
Q

big difference in pre-contract in assignment and subletting

A

in assignment is the assignor (so current tenant) that drafts the contract, evidence of title and copy of lease

in underletting, this is the landlord’s job

61
Q

impacts of SC and SCPC on ASSIGNMENT without consent?

A

SC: if no consent 3 working days before completion, either party can rescind WITH notice
+ if consent is only subject to conditions, either party can rescind if the conditions are not reasonable

SCPC: completion delayed until consent is acquired. completion is delayed to 5 working days after consent is acquired. If 6 months have passed from original completion date, either party may rescind

62
Q

what happens if parties proceed with assignment even with no landlord consent

A

purported transfer is void, assignor’s lease may be liable to forfeiture

63
Q

who prepares licence to assign

A

landlord and send it to assignor who consults with assignee whether its agreeable

64
Q

does the assignee need to be part of licence to assign?

A

NO
unless they are giving a covenant

65
Q

what difference does it make if AGA is mentioned as potential precondition in lease or not

A

if its mentioned, landlord can insist on AGA even if not reasonable

if not mentioned, landlord has no right to insist if unreasonable

66
Q

important thing to remember post exchange (or before completion if no exchange) for assignment

A

to do the same searches as for conveyance!! especially OS1 and K15 to confer priority period

67
Q

does a licence to assign need to be a deed

A

only if it contains covenants

68
Q

if assignor wants to recoup any money from assignee

A

will need to complete a completion statement showing amounts due and calculation

69
Q

what does the assignee get on completion

A

lease + transfer deed + executed licence to assign

70
Q

must assigned lease be registered??

A

in reg land yes!!! regardless of length

in unreg land also!!

separate title if over 7y left to run, same title if 7 years or under left

71
Q

how do you register an assigned lease?

A

if the freehold is registered, against the freehold title

if unreg, lodge it as a caution

72
Q

other types of rent review

A
  • index linked
  • fixed to tenant’s receipts
  • fixed increase
73
Q

details index linked rent review

A

rent is linked to external index (like Rental Prices index)

CON: doesnt assure that the index is linked to the market (hard to predict)

  • usually works on a cap based, which limits percentage increase, but also ensures respects a minimum % increase
74
Q

details tenants receipt rent review

A

linked to commercial tenant’s business turnover
- good if tenant is not sure of performing well, as it tracks financial health

  • can be detrimental for tenant if they suddenly do really well = landlord will want to increase a lot and technically able to
75
Q

fixed increase details

A

LOOK OUT!!
its a clause that stipulates increase at set periods of review
–> offers the most certaintly in terms of knowing how much you will have to pay (set in advance) but not the fairest as doesnt necessarily track market well

76
Q

remedies for breach of covenant of rent

A
  • debt action against tenant (within 6y)
  • pursue former tenant (of AGA)/guarantor (but needs to be via s17 written notice + must serve within 6m of current breach = can only get last 6 months)
  • use deposit
  • forfeiture (needs to be in lease, peaceful or court order but tenant can apply to court) (make sure to not have waived this right)
    -CRAR (7 days expired, 7 days notice, 7 clear days notice auction)(+MUST use enforcement agency to enter property and remove goods)
77
Q

breach of covenant to repair remedies

A
  • Jervis v Harris clause (self-help, needs to be in lease)
  • recover as damages (but only reflecting revisionary value that has decreased) (must serve s146 notice if over 7y with 3y left to run)
    -forfeiture (must serve s146 if over 7y with 3y left to run saying can serve counter notice)
  • specific performance (very rarely; only if any other remedy is not enough)
78
Q

remedies for breach of user cov

A
  • damages
  • injunction (to stop using property in such way) (equitable so only if common law are not sufficient)
  • pursuing former tenant or guarantor
79
Q

is specific performance a remedy that is ordered in breach of cov?

A

only if there was a positive obligation sufficiently precise and damages are not an adequate remedy

80
Q

explain LTA 1954 and when does it apply

A

statutory provision that offers commercial tenants of a lease (make sure its not a licence!!!) longer than 12 months security of tenure. This means that even if the lease is for a fixed period and this period eventually runs out, it can only be terminated through specific methods layed out in the act.

81
Q

how does a lease terminate under LTA 1954

A

tenant must serve notice under s27 3 months prior to termination OR ceasing to be in occupation at the end of the fixed term

82
Q

how does a landlord terminate under LTA 1954

A

must serve a s25 on the tenant (this either indicates the grounds for the new lease OR indicates the grounds for termination under s30)
!! this cannot be earlier than current contractual date, and must be SERVED 6-12 months before contractual termination date

83
Q

what must a tenant do if they receive a s25 (LTA 1954)

A

must immediately apply to court to protect their rights (should still apply even if landlord is just setting out new terms and not necessarily against lease)

–> if landlord does not oppose, negotiate can begin. if landlord opposes, will serve counter notice

84
Q

what’s the use of a s26 (LTA 1954?)

A

tenant applies under this for a renewal of the tenancy = brings tenancy to end and requests new tenancy

USEFUL IF
- thinks rent too expensive, could achieve reduced rent
- wants to assign lease and believes would be more attractive to buyer if new fixed term was assigned
–> must state date of new tenancy + proposals (SAME TIMES LIMITS AS LANDLORD)

85
Q

what tenancies are not included in LTA 1954

A

-agricultural tenancies
- tenancies at will
- tenancies for shorter than 12 months

86
Q

how to circumvent LTA 1954

A
  • contract out
  • do lease under 12 months (but if continue or renew automatically you’re bound)
87
Q

how does a tenant protected by LTA 1954 terminate lease AFTER contractual expiry date

A

either agrees to voluntarily surrender with landlord, or MUST serve s27 3 months prior to date of termination

88
Q

how does a tenant protected by LTA 1954 terminate lease ON contractual expiry date

A

by ceasing to occupy on expiry date or by serving s27 3 months period

89
Q

how to contract out of LTA 1954

A

must write to tenant explaining that they are contracting out and asking them to confirm in writing that they are happy to do so
if this is less than 14 days before date of granting lease, needs to be sworn by an independent solicitor

90
Q

s30 grounds for termination LTA 1954

A

a) tenant’s failure to repair (D)
b) tenant’s failure to pay rent (D) (no comp)
c) tenant’s breach of other covenants and obligations (D) (no comp)
d) landlord offering suitable accommodation (M)
e) tenancy is underletting of part (D)
f) landlord is doing construction/demolishing (M)
g) landlord wants to occupy themselves (at least 5 years after owning interest) (M)

91
Q

what compensation is tenant entitled to under LTA 1954

A

if its ground b/c: NONE

if other grounds = equivalent to the rateable value of the holding
- if have been in occupation for over 14 years, 2 rateable value

92
Q

how does court establish new lease after s25/s26

A

(tenant will only be entitled to the parts they occupy eg if they have sublet doesnt count)

  • cannot exceed 15 years
    -new lease commences 3 months after 4 weeks after order

-rent is open market rent (court disregards goodwill, occupation, tenant improvements)

  • can insert rent review clause (even if there wasnt one before)
  • other terms of the lease will be based on the current lease

–> if tenant is unhappy can apply for it to be revoked. landlord can simply appeal

93
Q

are agreements restricting/excluding compensation (for termination under LTA 1954) valid?

A

VOID IF tenant/predecessors in occupation for over 5y (fewer than 5y = valid)

94
Q

structure if questions regards to covenant enforceability

A

always explain that its a ‘promise’ for lay client

  • divide between restrictive
    a) enforce against current occupiers (or if aga against original also) OR also option of original covenantors IF FREEHOLD COV (no release)
  • positive
    b) enforce only on original covenantors
    + can sue for any loss incur (eg cost of repairing a fence)
95
Q

searches for granting lease

A

similar as for conveyance but will also want to landlord’s INSURANCE POLICY

96
Q

what’s should the landlord provide the tenant with before granting lease

A

a) draft agreement for lease
b) draft lease
c) evidence of freehold title
d) copies of any relevant planning consents
e) evidence of lender’s consent to grant the lease

** if its an underlease, make sure to also give landlord’s consent (this is given via licence to underlet)

97
Q

what happens in pre-completion of lease

A

1) approportionment

2) landlord executes lease and tenant counterpart - this is exchanged on completion and the landlord should send the counterpart to the tenant at least 5w days before completion

–> lease must obviously be by deed

98
Q

how do you register a lease under 7y

A

as an overrding interest (make sure its within 2m for unreg land and within priority period for reg land)

if its OVER 3y you can register it against the landlord’s title

99
Q

what’s the point of a licence to underlet

A

it’s where the landlord officially gives consent (otherwise headtenant in breach of alienation cov)

+ direct covenant from undertenant to landlord (all tenant’s covs apart from rent)

+ agreement for headtenant to pay landlord’s costs

100
Q

what usually happens regarding rent in a sublet.

A

the headtenant basically works as a landlord to the undertenant = the UT will pay the rent to the HT

BUT if the HT has not paid the rent to the actual landlord within 14d, the landlord can ask the UT directly

101
Q

in assingment, can you negotiate terms of the lease?

A

generally no because you’re essentially just buying the og tenant’s lease
(will need landlord’s consent to vary terms)

102
Q

pre-contract stage in assignment

A

1) assignor prepares pre-contract package (draft contract, evidence of title, copy of lease) and applies to L for consent

2) assignee raises searches and enquiries, investigates title, amends and approves the draft contract

103
Q

pre-completion stage in assignemnt

A

ASSIGNEE prepares the purchase deed which assignor approves, both parties agree the form of the licence to assign with the landlord

104
Q

what do you need from the landlord in assignment

A

just consent and licence to assign (landlord can impose conditions but if the lease specifically allows assignment, cannot charge)

105
Q

can landlord charge for consent for assignment?

A

technically yes unless the lease specifically allows it

106
Q

what sort of documents can be requested to grant assignment/lease/underlease

A

1) reference from prvious landlord
2) reference from employee
3) reference from bank, audited accounts

107
Q

can you exchange contract for assignment before landord’s consent

A

yes in SC (and SCPC?), but not advisable obviously (breach of alienation cov + breach of contract with assignee)

108
Q

who prepares the licence to assign and whats the point

A

the landlord - formalises consent and assignor undertakes to pay landlord’s legal costs

–> AGA can be included here or in separate doc

109
Q

does the assignee need to be part of the licence to assign?

A

generally no, unless they are giving a covenant (which actually they usually are)

110
Q

format of a licence to assign

A

deed if giving covenants

111
Q

do you need an agreement for lease in an assignment?

A

no because you’re not changing the terms of the lease (technically nothing to agree on)

112
Q

whats the point of an agreement for lease?

A

its useful in a grant of a lease to make sure the potential tenant does not ‘lose their position’ –> its a contract (so secures right) and useful if there is a delay between agreement and actual grant

–> landlord still in process of construction
–> tenant wants to make refurbishments/major works/planning permission
–> some type of consent is needed

113
Q

what’s the point of adding the direct cov between undertenant and landlord in licence to underlet?

A

because usually the undertantn has no privity of contract with the landlord = landlord would be unable to sue for any breach = contractual doc will allow for this

113
Q

key thing to think about when granting lease if property has mortgage (AND ASK)

A

that there’s often a restriction in mortgage terms as to ability to grant lease on property = will need to make sure this is contracted out (make it a SC)

114
Q

how to recover money from previous tenant that gave AGA

A

serve a default notice!
if its breach of rent, s17 LTCA 1995 explaining how much is due (must be within 6m of tenant’s breach - can only recover 6 previous months)

115
Q

what are the covenants usually included in an AGA

A

1) guaranteeing new tenant will observe and perform the covs

2) promising to perform such covs if the assignee does not

3) indemnifying landlord for assignee’s failure to pay rent

4) promise to take new lease if liability of assignee is disclaimed in insolvency

116
Q

what to ask to see before assingment

A

ask for assignor
1) copy of insurance policy
2) receipt of last insurance premium due
3) receipt of last rent pad

–> very important because you will be liable for your assignor’s breaches (if they have failed to pay/comply with any of these)

117
Q

enforcement time limits for breach of planning permission

A

change of use form single dwelling: 4y
operational: 4y
all other material breaches: 10y

118
Q

what are ‘operational’ breaches re planning permission

A

activities which result in some physical alteration to property - some degree of permanence in land itself

119
Q

what are material breaches of planning permission

A

change of use - things that affect land but haven’t got any impact on physical land

120
Q

what do you need re building reg?

A

ALWAYS apply for Building Regulations Consent = certificate of compliance

121
Q

do you count contents in balance?

A

yes - you reduce it

122
Q

key definitions in licence to assign with AGA

A

Assignment (assignment permitted by clause X)
Assignment Date

Authorised Guarantee Agreement

Lease (address + date of original lease)

Property (address as comprised in lease)$

Rent

Tenant Covenants (LTCA 1995)

123
Q

key things to look out for in licence to underlet

A
  • landlord right to re-entry
  • breach of cov terminates whole lease?
  • rent review
  • what is the undertenant covenanting to
  • costs payable to landlord in indemnity or assessed normally?
  • any third party rights?
  • execution - make sure it says as a deed + check formalities + who needs to be executing
124
Q

how to add AGA in licence to assign

A

1) add one clause in the middle saying fro and including assignment date and throughout period Assignee is bound by Tenants Covenants, Tenant must cov with landlord in terms of the AGA set out in the schedule

then in the schedule you add
1) guarantee and indemnity (guarantees assignee will pay rent and observe and perofrm covs + will pay rent and observe and perform covs if assignee does not)
(will indemnify landlord for any liability or loss caused by assignees failure…)

2) tenant’s liability (make sure to write liability under clause 1 shall continue until the end of the term of the lease or when assignee is released from covs)

3) tenant to take new lease
(conditions and circumstances in which tenant takes new lease - if assignee is disclaimed

125
Q

main things to add in AGA Schedule

A

1) tenant guaranteeing and indemnifying (performance of cov + rent + will do it otherwise + will indemnify)

2) how long tenant is liable for

3) tenant having to find new tenant if assignee is disclaimed

126
Q

where do you add the 2 KEY clauses in assignment TP1

A

1) panel of full title (9): relating to s.4 Law of Porperty (Miscellaneous Provisions) Act 1994

2) panel of additional provisions (11): AGA (transferee covenants to indemnity the transferor for any liability + covenants to perform such covenants)

127
Q

draft an AGA to add in panel 11 TP1 (assignment)

A

–> this relates to transferee and transferor

the transferee covenants to indemnify the transferor for any liability incurred for breach of the tenant’s covenants in the Lease and to perform such covenants from and including the date of this transfer

128
Q

draft and AGA to add in licence to assign

A

this relates to tenant (assignor) and landlord

From and including the date of this Assignment, and throughout the period during which the Assignee is bound by the Tenant Covenants of the Lease, the Tenant must covenant with the Landlord in the terms of the Authorised Guaranteed Agreement set out in the Schedule.

129
Q

how does a company execute a TR1/TP1

A

Executed as a DEED by Company Ltd acting by two directors (or a director and a secretary)

130
Q

crucial thing when executing a deed

A

you need to say its EXECUTED AS A DEED BY
and needs to be witnessed (with their name + address + occupation)

131
Q

search to check if use of property as its being used is authorised

A

Local search (CON29)

132
Q

when is a TPO relevant

A

if client is planning extension/modification in their garden (might be knocking down trees)

133
Q

why is it relevant to do water and drainage search if you’re planning to do extension of property?

A

because if there are water ways and drains etc which are maintained at public expense, you are not able to build over them

134
Q

what do you do if local search shows property is contaminated

A

do a full intrusive survey (under environmental search) and take soil samples to check if the actual Property is actually contaminated

–> really important because if it is, proprietor will have to pay costs of remediation (and not the polluter) (costly)

135
Q

when do you not need to do a chancel repair search

A

if the property has been sold since 13 October 2013 –> because any liability will then appear in the charges register

136
Q

why is coal mining search if want to redevelop property?

A

because can show if there is any instability in the ground (more relevant if there is something in the official copies or if its in a region known for mining)

137
Q

whats in the certificate of title to lender

A
  • confirms who will own property after purchase
  • adds conditions lender might ask
  • summary of info on investigation (there are no mortgages, charges or liens… or the property is subject to a mortgage dated…)
  • report about property

–> structured as a series of statements
–> CONDITIONAL opinion that title is good and marketable because its subject to any disclosures made and due registration at Land Registry of the transfer of the Property from seller to buyer

–> its given immediately prior to completion of loan

138
Q

further action if failure to comply w restrictive cov

A

apply to court for injunction

139
Q

further action if failure to comply with positive cov

A

nothing really

140
Q

when is final exchange of certificate of title

A

before completion! (not before exchange of contracts)
only necessary if there’s a mortgage - to the lender

141
Q

checklist for drafting lease/freehold contract

A

1) all details about landlord (name, address, is it a company if so registered number, any other directors + corporate structure)

2) all details about building (freehold or leasehold, title number (or do you have official copies), map, deduction of title from landlord, how many floors, any specific amenities, will you be having access to everything?)

3) details about any letting/agent involved

4) sepecific details about use of property (what’s its current state, who’s responsible for maintenance, costs)

5) if its a lease: specific details about lentght, flexibility in this, type of payment, is there a break clause (if so, whats the notice period and are there any pre-conditions)

explain security of tenure if its a lease

142
Q
A

SQE2 total (9 decks)

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