Flashcards in Property Chapter 4 Deck (26)
The buyer’s solicitor must carry out the following steps in preparation for completion
1. draft the Transfer;
2. submit the Completion Information and Undertakings Form;
3. obtain finance (this could involve obtaining finance from the buyer itself
and (if applicable) its lender); and
4. submit pre-completion searches
Who drafts the transfer
What is a transfer
the buyer solicitor drafts the Transfer after exchange of contracts and then sends it to the seller's solicitor for approval.
The transfer is a deed Section 52 Law of Property Act 1925 (‘LPA 1925’)
What is a standard form TR1 is used to transfer
Used to transfer the whole of an existing freehold (or leasehold) registered title.
Other forms of Transfer that might be used for registered land are:
- TP1 – used for the transfer of part only of a registered title; and
- TR5 – used for the transfer of a portfolio of registered titles. If, for example, a seller client owns several industrial estates up and down the country and they are all separately registered a TR5 would be used to
transfer ownership of the whole portfolio to the buyer.
Sale by a surviving tenant in common
for either registered or unregistered land if a second trustee needs to be appointed
Submit Completion Information and Undertakings Form (e.g. TA13 or its equivalent)
What would the information request include
This form, requiring information for completion and dealing with relevant undertakings required from the seller’s solicitor, is sent by the buyer’s solicitor
to the seller’s solicitor shortly before completion.
General object of the form now is to obtain practical information about the completion arrangements so that completion runs smoothly.
The information request would include:
a) where the seller has a mortgage, an undertaking in respect of it.
b) The seller's completion statement setting out the balance of funds required form the buyer to complete.
c) Bank details of the seller's solicitor, so that the buyer's solicitor knows where to send the money.
d) information about where keys to the property can be collected from and how the title deeds will be sent to the buyer's solicitor (if completion is by post).
What does the seller's solicitor send out
What does the buyer's solicitor send out
Sources of buyer's funds
Seller's solicitor's completion statement received by the buyers prior to completion.
Buyer's solicitor sends to the buyer a financial statement and the bill for the buyer's legal fees. (different to completion statement in that it shows the total cost of the transaction for the buyer inc SDLT)
Sources of funds: buyer may need advance warning to get the funds to solicitor. The lends will also require notice to be given before it will release loan monies.
The funds need to have cleared through the account of the buyer's solicitor by the day of completion in order to send then to seller's solicitor.
Acting for a lender and the borrowers? practically what happens
O.(3.5) of the code states as general rule that you are not permitted to act for more than one party where there is a client conflict or significant risk of one.
In resi - common to act for borrowers and lender.
Commercial - extremely rare for the same solicitor to act for both.
Explain the certificate of title in reference to the lender (when is it provided)
provided before exchange to the lender, the financial signed version being sent at completion.
Confirms to the lender that the title to the property is good, marketable and acceptable as security for the mortgage.
OS1 what is the purpose?
1) to check whether any further entries have been made on the official copies of the register for the property since they were supplied to the buyer's solicitor
2) to provide the searcher with a priority period of 30 days.
Solvency searches on buyer
If as in resi the buyer's solicitor is acting for the buyer and lender - he will carry out searches on buyer
- if buyer is company (companies house search)
- if buyer is an individual a bankruptcy search ) form K16)
In commercial - the buyer and lender are often separate the lenders solicitor will undertake these searches. But, in practice the buyers solicitor will do a company search against seller- because a seller's floating charges and pending insolvency will not be revealed on the LR title. Where the seller is an individual no need to do anything because if they were bankrupt it would be revealed on the buyers OS1 search.
while investigating the title the buyer's solicitor will ensure the central land charges search on form K15 carried out against the seller and all previous known owners of the land for the period of their ownership. Clear for 15 working days form the search.
The seller’s solicitor must carry out the following tasks in preparation for completion:
1. reply to the buyer’s Completion Information and Undertakings Form;
2. prepare a completion statement for the buyer’s solicitor and request a
redemption statement from the seller’s lender(s) (if any); and
3. agree the form of Transfer and arrange for it to be executed by the seller.
Reply to the Completion Information and Undertakings Form
SCPC 7.3.1 requires the seller’s solicitor to reply to ‘written requisitions’ within
four working days after receiving them from the buyer’s solicitor. This relates
to the Completion Information and Undertakings Form
Explain the redemption process
Shortly before completion, the seller's solicitor must obtain a redemption figure from the sellers lender - it is the amount required to pay off the mortgage. The lender will have had a charge and restriction against the property - this will need to be removed.
The seller's solicitor will give the buyer's solicitor an undertaking before completion relating to the discharge of the Mortgage. The seller's solcitor will need to check with good time that the seller's redemption figure is less than the sale proceeds. Otherwise the seller is left in a position of negative equity.
Seller receives a bill of costs.
Agree the Transfer
The seller’s solicitor will approve or, if necessary, amend the Transfer (generally Form TR1) drafted by the buyer’s solicitor to ensure that the document
accurately reflects the terms of the contract. Once the TR1 is agreed, the buyer’s solicitor will forward an ‘engrossment’ of the Transfer to the seller’s
This is the final agreed version printed out for execution by the seller.
For registered land a certified copy will ultimately be sent off to the Land Registry to register the purchase after completion; for unregistered land the
original is sent as well as a certified copy.
When does a buyer need to sign the transfer
The solicitors arrange for the engrossed Transfer (TR1) to be executed by their
clients in the appropriate manner. The seller must always execute it.
The buyer will not always execute the TR1 but must do so if the buyer is:
entering into new restrictive or positive covenants;
giving the seller an indemnity covenant (for example, pursuant to SCPC; or
declaring a trust (for example, where joint purchasers declare whether or not they will hold the property as tenants in common or joint tenants).
Execution by an individual
For deeds executed after 31 July 1990, s.1(3) of the Law of Property
(Miscellaneous Provisions) Act 1989 (‘LP(MP)A’) sets out the requirements for the execution of a deed:
(3) An instrument is validly executed as a deed by an individual if, and only if –
(a) it is signed –
(i) by him in the presence of a witness who attests the signature;
(ii) at his direction and in his presence and the presence of two witnesses who each attest the signature; and
(b) it is delivered as a deed by him or a person authorised to do so on his behalf
Execution by companies
Sections 44(1) and (2) Companies Act 2006 (‘CA 2006’) state that a company
can execute a document by two authorised signatories (with or without a
company seal as stipulated in the Articles) or by a single director of the company
in the presence of an independent witness who attests the signature.
One example of a valid execution clause for a deed executed by a company by
its directors or director and company secretary is:
Execution by LLPs
One example of a valid execution clause for a deed executed by an LLP by two
Explain the three methods of completion, things that need to be checked
In person/ post/ telephoned.
Buyer's solicitor needs to check the seller has provided to the Completion Information Undertaking Form.
Transfer: The TR1 has been signed by the seller (although in practice this will be with the buyer's solicitor)
Mortgage docs if necessary
Pay completion monies
What does the seller's solicitor do when it completes the transaction
When the accounts department notifies the seller’s solicitor about receipt of
completion monies, completion can take place (usually confirmed by telephone)
and the seller’s solicitor will date the TR1 and assemble the documents which
need to be handed to the buyer’s solicitor. These are:
1. the executed and dated TR1;
2. any original title or other deeds relating to the property held by the seller (for example, a deed of easement);
3. seller’s solicitor’s undertaking in respect of any outstanding charges on the property (to be followed by DS1/evidence of discharge by Electronic Discharge (‘ED’) or e-DS1 if the land is registered or receipted mortgage if the land is unregistered). See below for more detail on this;
4. originals of planning permissions/building regulation approvals/
guarantees (for example, structural guarantees); and
5. receipts for payment of apportionments and receipts for any chattels
Seller's solicitor's undertaking
The seller’s solicitor will give an undertaking to the buyer’s solicitor (unless already given in the replies to the Completion Information and Undertakings Form) that he or she will send the lender the amount required to discharge any mortgages attached to the property and will confirm whether or not such discharge would occur before or, more usually, just after completion.
Usually the seller’s solicitor will arrange for the charge to be discharged after completion by sending some or all of the proceeds of sale to the lender. In this
situation it is important that the seller’s solicitor checks the lender’s redemption statement to see whether they are in a position to send the full amount required
to redeem the charge. Subject to that the seller’s solicitor will undertake immediately on completion to:
remit the funds required to redeem the charge; and
forward evidence of the discharge to the buyer’s solicitor as soon as it is
received from the lender. This can take the form of either a completed (i.e. signed and dated) Form DS1 or a copy of the confirmation letter from the lender that an ED or e-DS1 has been sent electronically direct to the Land Registry.
key two elements of the seller's solicitors undertaking
1. an undertaking to remit the funds required to redeem the charge (i.e. the figure referred to in the lender’s redemption statement); and
2. an undertaking to forward the DS1/ED/e-DS1 discharge confirmation within a short specified timeframe (typically ‘forthwith’ or ‘within two
working days of receipt’).
What does the seller's solicitor do on the day of completion:
1. Report to client
2. Date Transfer
3. Arrange for lender's charge (if there is one) to be discharged
4. send client balance of sale proceeds
What does the buyer/lender;s solicitor on the day of completion will:
1. Report to client
2. Date the legal charge if buyer is buying with the aid on mortgage