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Flashcards in Property Chapter 1 Deck (68)
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1

Explain the three sections of the Title Register

The official copies of the register actually comprise three separate registers:
A: Property Register: describes the extent of the property and rights benefiting the
property;
B: Proprietorship Register: gives the class of title, the owner’s name and
address and entries affecting the owner’s right of disposal; and
C: Charges Register: lists “charges” burdening the property i.e. third
party rights over the property (e.g. mortgages, positive covenants and
restrictive covenants, leases or the burden of easements).

2

The buyers solicitor provides a Report on Title with a view to......

Reporting that the property has good and marketable Title.
To fully investigate the Title, the buyer's solicitor should also check for any unregistered third part interests

3

Where a right of way is included in the Property Register, the buyer’s solicitor
must consider and advise their client on all of the following:

Adequacy: adequate for client's purposes
Maintenance: the buyer as a result of common law will be required to contribute towards maintenance
Adoption: buyer needs to be advised of the potential future costs of adoption to ensure it is an "adoptable standard"
Registration: Both the benefit of the right and the burden of the right need to be registered on respective registers.

4

The benefit of the right to lay pipes for water and sewerage

The October 2011 Water Industry Regulations.

5

Right to light
&
How to establish a right to light.

An easement to enjoy the natural light that passes over someone else's land and then enters through a defined aperture in a building (e.g a widow)

an express grant by deed (which is rare in practice); or
 (more commonly) acquired by prescription under the Prescription Act
1832 (‘PA 1832’). To succeed in claiming a right under the PA 1832, the
light has to have been enjoyed without interruption for a period of at
least 20 years from the date on which the action asserting the right was begun and the light has to have been enjoyed without any written
consent.

On the sale of part the right to light can be expressly excluded from the land being bought.

6

If a right of light has been established the owner of the dominant land (i.e. the land benefitting from the right of light), what are they entitled to?

An uninterrupted flow of sufficient light for the comfortable use and enjoyment of the building: Colls v
Home and Colonial Stores Limited [1904] AC 179.

7

What is the remedy for the disturbance of the right to light?

An action of nuisance.
The court may grant an injunction preventing the continued nuisance or it may award damages instead. This could mean that a development may be prevented due to the enforceable right to light even if planning permission has been granted by a local authority.

8

Remedy for obstruction of an easement?
What do they need to prove

The remedy for the obstruction of an easement is an action for nuisance.
In such an action, the claimant will have to prove:
 title to the easement (e.g. by way of express grant);
 the scope of the easement; and
 that there has been a substantial interference of the right.

(SSS)

In the case of the obstruction of an easement conferring a private right of way, the obstruction is only actionable if it is considered to be substantial. One of
the tests the court will consider in establishing this is: does the obstruction mean the right cannot be substantially and practically exercised as
conveniently as before? If the answer is yes, an injunction may be granted preventing the obstruction of the easement.

9

In Guest Estates Ltd v Milner’s Safes Ltd (1911) 28b TLR 59
In Pettey v Parsons [1914] 2 Ch 662

In Guest Estates Ltd v Milner’s Safes Ltd (1911) 28b TLR 59: it was held that a locked gate blocking a private right of way would be a substantial obstruction giving rise to actionable interference of the easement.

In Pettey v Parsons [1914] 2 Ch 662 the erection of a gate across a private right of way was held to be no interference with the right [provided] “proper
facilities [had] been given to the dominant owner

10

How many classes of title are there?
Name them

Title Absolute
Qualified Title
Possessory Title
Good Leasehold

11

Name four groups with the right to sell land

1. an Individual
2. A company
3. A limited Liability Partnership
4. joint owners
5. Someone with the power to sell e.g a bank / personal representative

12

Sale by an individual (execution) what is the individual required to do?

The individual must sign the contract and execute the purchase deed.

13

Sale by a company (execution) - what is the company required to do?

The company must sign the contract and execute the purchase deed.

14

How does a company which owns property is registered overseas execute a deed?
What must the solicitor check?

If the company which owns the property is registered overseas, the overseas company has to sign the contract and execute the purchase deed.
You must check the person or persons signing has, or have respectively, the authority of the company to sign for that company – you would need to get a legal opinion from a lawyer in that jurisdiction confirming this.
The Proprietorship Register should contain the registered proprietor’s company number. Companies may change their corporate name and will not
necessarily inform the Land Registry each time they do so. However, the company number will remain the same.

15

A companies search is carried out on the seller prior to exchange of contracts on the seller.
What does the search check for/ ascertain?

The search is against the registered proprietor’s company number and will ascertain the
correct and current name and address of the registered proprietor, to ensure that this matches with the company purporting to sell the property.
Additionally, the company search will check that:
a) the company has been registered and still exists; and
b) the company is not subject to winding up proceedings.
A company formed under the Companies Act 2006 (‘CA 2006’) has an implied
power to sell property unless the company has restricted this in its Articles.
The vast majority of companies formed prior to the commencement of CA
2006 will also have power to sell property, but you should check that their
objects (found in their Memorandum) do give the company such power.
If the company selling is an overseas company, you would ask a lawyer
registered in that jurisdiction to carry out similar checks

16

What Act gives companies the implied power to sell property?

Companies Act 2006 unless restricted in it's Articles.
The vast majority of companies formed prior to the commencement of CA 2006 will also have the power to sell property, but you should check that their objects (found in their Memorandum) do give the company such powers.

17

Sale by Limited Liability Partnerships - (execution) - what is the LLP required to do?

The LLP must execute the contract and purchase deed. It will need to executed by two members and a witness.

18

How can you hold property as joint/ co-owners?

Where the property is owned by more than one owner, the legal estate must be held by the owners as joint tenants, but the owners can choose to hold the
beneficial interest either as joint tenants (or as tenants in common.
Joint tenants have an equal share.
If the joint owners owned the property as beneficial joint tenants and one of the joint owners dies, then the deceased’s legal and beneficial interest in the
property will pass automatically to the survivor(s).

Tenants in common - (think commoners, stingy, so have taken separate shares) However, if the joint owners owned the property as beneficial tenants in common and one of the joint owners dies, then whilst the legal estate in the property will pass automatically to the survivor(s), the deceased’s beneficial interest in the property will pass via the deceased’s will or, if the deceased does not have a will, according to the rules of intestacy.

19

Why would the law step in to sever a joint tenancy?

One of the owners is declared insolvent (if the joint owner is a company) or declared bankrupt (if the joint owner is an individual). The difference between the two is relevant if one of the joint owners has died, or if the joint owners are companies, if one of the companies has been wound up.

20

What does Section 20 Partnership Act 1890 say?

The land owned by partners in a partnership is held on trust for the partnership. There is a (rebuttable) common law presumption that partnership property is held by the partners as tenants in common (because survivorship holds no place in business).

21

When can a company hold property on trust?

If it has the constitutional power to do so. The position is the same for an LLP. If two LLPs or two companies own the property for business purposes, they will be partners so, by analogy, the presumption they hold as tenants in common will apply.

22

How can you tell from the Proprietorship Register whether the registered proprietors are beneficial tenants in common?

For both business tenants in common and individual tenants in common, the Land Registry places a “Restriction” on the Proprietorship Register if the
owners have chosen to be tenants in common.

23

Why does a lender put a Restriction on the Proprietorship Register?

To prevent any dealings with the land (e.g lease being registered) without it's consent.

24

How can you tell from the Proprietorship Register whether the registered
proprietors are beneficial joint tenants?

If they are joint owners, but no tenant in common Restriction appears on Proprietorship Register, then the joint owners hold both the legal and beneficial interest in the property as as joint tenants.

25

Tenants in common:
What happens when you want to sell and there are more than one surviving individual tenant in common.

Evidence required

All of the surviving tenants in common must execute the contract and purchase deed. As there is more than one surviving tenant in common, there are still at least two trustees. Therefore, the beneficial interest in
the deceased tenant in common’s interest will be overreached when the purchase monies are paid to the surviving tenants in common.

Evidence required by the Land Registry (when registering a purchase of land from more than one surviving tenant in common) will be an official
or certified copy of the death certificate(s) of the deceased tenant(s) in common (to confirm the death(s))

26

What happens when you want to sell and there are more than one surviving individual tenant in common.

Evidence required

All of the surviving tenants in common must execute the contract and purchase deed. As there is more than one surviving tenant in common, there are still at least two trustees. Therefore, the beneficial interest in
the deceased tenant in common’s interest will be overreached when the purchase monies are paid to the surviving tenants in common.

Evidence required by the Land Registry (when registering a purchase of land from more than one surviving tenant in common) will be an official
or certified copy of the death certificate(s) of the deceased tenant(s) in common (to confirm the death(s))

27

What happens when you want to sell and there is only one surviving individual tenant in common.

Evidence

Legally, ownership vests in the surviving tenant in common by survivorship, because legally all co-owners hold the property as joint tenants.
Beneficially, the deceased tenant(s) in common’s interest needs to be overreached by the appointment of a second trustee and payment of the purchase monies to the trustee and the one surviving tenant in common.

The trustee is appointed by means of a deed of appointment and usually the seller’s solicitor will be appointed and act as this second trustee.
Both the trustee and the one surviving tenant in common will need to execute the contract and the purchase deed.
Evidence required by the Land Registry (when registering a purchase of
land from only one surviving tenant in common):
 an official or certified copy of the death certificate(s) of the deceased tenant(s) in common (to confirm the death(s)); and
 the deed of appointment of the second trustee (whose name
will appear on the purchase deed along with that of the one surviving tenant in common).

28

More than one surviving joint tenant

Evidence

All of the surviving joint tenants must execute the contract and purchase deed. Legal and beneficial ownership vests in the surviving joint tenants
under the doctrine of survivorship.

Evidence required by the Land Registry (when registering a purchase of
land from more than one surviving joint tenant):
 an official or certified copy of the death certificate of the
deceased joint tenant(s) (to confirm the death(s)).

29

Only one surviving joint tenant

Evidence

The surviving joint tenant must execute the contract and purchase deed. Legal and beneficial ownership vests in the surviving joint tenant under the doctrine of survivorship.
 Evidence required by the Land Registry (when registering a purchase of land from the surviving joint tenant) will be an official or certified copy of the death certificate of the deceased joint tenant(s) (to confirm the death(s))

30

Where do tenants in common record their contributions to purchase

Separate declaration of trust ( deed of trust/ trust deed)