SQE2 Written Day 2 (Probate & Property) Flashcards
Wills & Probate, and Property
1
Q
Property
What reasons should be given to a client who wants us to represent both them and the other party?
A
That it would be against our code of conduct
That we are attempting to get the best outcome for our client, hence this would give rise to a conflict.
2
Q
Property
What is the extent of our advice on mortgages?
A
We can advise on types of mortgage, but not lenders or specific products.
3
Q
Property
What are the key points to make with regard to interest only mortgages?
A
That you will still have to pay the full amount at the end of the product.
That they’re cheaper.
You will still need a means to pay at the end of the product.
4
Q
Property
Tenants in common - can they hold in equal shares?
A
Yes
5
Q
Property
Can one solicitor represent both parties when buying as tenants in common?
A
No, due to the conflict.
6
Q
What is the degree of annexation test?
A
If something it physically attached by nails or screws, or will be damaged by removal, it’s a fixture.
7
Q
What is the purpose of annexation test?
A
Whether the owner intended to make it a permanent part of the land eg a statue that is a focal point.
8
Q
What is an easement?
A
A right to use another’s land, to the benefit of another piece of land.
9
Q
If someone purchases a property and wasn’t given notice of other EQUITABLE interests in the property, are they binding?
A
No
10
Q
If someone purchases a property and wasn’t given notice of other LEGAL interests in the property, are they binding?
A
Yes
11
Q
What are the three types of notice that let a purchaser know that there exists an equitable interest, and that it will be binding?
A
Actual, constructive or Imputed
12
Q
What are the three types of notice that let a purchaser know that there exists an equitable interest, and that it will be binding? ___________, constructive or Imputed
A
Actual
13
Q
What are the three types of notice that let a purchaser know that there exists an equitable interest, and that it will be binding? Actual, ____________ or Imputed
A
Constructive
14
Q
What are the three types of notice that let a purchaser know that there exists an equitable interest, and that it will be binding? Actual, constructive or __________.
A
Imputed
15
Q
What constitutes ACTUAL notice of an equitable interest?
A
That the purchaser knows of the interest themselves.
16
Q
What constitutes CONSTRUCTIVE notice of an equitable interest?
A
That the purchaser would have discovered the facts after reasonable enquiry.
17
Q
What constitutes IMPUTED notice of an equitable interest?
A
That the purchaser was given notice by their agent.
18
Q
When land is registered for the first time there are 4 things which will persist, what are they?
A
A lease of less than 7 years, a legal easement, a local land charge, interest belonging to person in actual occupation.
19
Q
When land is registered for the first time there are 4 things which will persist, what are they? A lease of _____________, a legal easement, a local land charge, interest belonging to person in actual occupation.
A
Less than 7 years
20
Q
When land is registered for the first time there are 4 things which will persist, what are they? A lease of less than 7 years, a legal ___________, a local land charge, interest belonging to person in actual occupation.
A
Easement
21
Q
When land is registered for the first time there are 4 things which will persist, what are they? A lease of less than 7 years, a legal easement, a local ______________, interest belonging to person in actual occupation.
A
Land charge
22
Q
When land is registered for the first time there are 4 things which will persist, what are they? A lease of less than 7years, a legal easement, a local land charge, interest belonging to person _________________.
A
In actual occupation
23
Q
Within how long of a triggering even must land be registered?
A
2 months
24
Q
What details are on the charges register?
A
Details of Encumbrances on the land such as legl easements and mortgages. Remember Encumbrances / Easements = ChargEs. C=E Claire Elizabeth!
25
In a joint tenancy, how can one of the owners convert the interest to tenants in common - for example to sell their interest?
By giving the joint tenant notice in writing of a desire to sever, by treated their share as separate for example by contracting to sell it, by mutual agreement, by bankruptcy.
26
In a joint tenancy, how can one of the owners convert the interest to tenants in common - for example to sell their interest? By giving the joint tenant notice in writing of a desire to sever, by treating their share as separate for example by contracting to sell it, by _________________, by bankruptcy.
mutual agreement
27
What is the process required to take free of a beneficiary's interest in land?
By overreaching - paying an additional trustee.
28
In a TOLATA case, what factors are taken into account in deciding what should happen where there IS NO declaration of trust?
Intentions of person making the trust, purpose the property was for, welfare of any minor occupant.
29
In a TOLATA case, what factors are taken into account in deciding what should happen where there IS NO declaration of trust? Intentions of person making the trust, _______________ was for, welfare of any minor occupant.
purpose the property
30
Can a subtenant be held liable by the landlord?
No, as they are not in privity with the landlord.
31
A lease longer than which term must be created by deed?
3 years
32
What special conditions apply to a lease shorter than 3 years?
Doesn't need to be via deed, can simply be a written agreement, must be at market price rent without up front fees.
33
What special conditions apply to a lease shorter than 3 years? Doesn't need to be _________, can simply be a written agreement, must be at market price rent without up front fees.
via deed
34
What special conditions apply to a lease shorter than 3 years? Doesn't need to be via deed, can simply be a written agreement, must be at _________________ without up front fees.
market price rent
35
When might a license in fact be a lease, and the landlord is trying to get out of it?
If the tenant has exclusive possession, it's for a fixed or periodic term, and for consideration.
36
When might a license in fact be a lease, and the landlord is trying to get out of it? If the tenant has exclusive possession, it's for a fixed or periodic term, and for _____________.
consideration
37
What does the landlord have a statutory right to do, if a COMMERCIAL tenant fails to pay the agreed rent?
Take control of the tenants goods and sell them.
38
What is a qualified alterations covenant?
Prohibits a tenant making non structural alterations to leased promises without landlord's consent.
39
What can a Landlord do if a tenant breaches a covenant of repair?
They can claim damages, or check whether there is a self help clause (a Jervis + Harris clause) allowing them the right to enter and put right, if the tenant fails to comply with a notice to repair.
40
What is the test that should be applied if there is a qualified covenant against assignment of a lease?
The landlord may not unreasonably withhold consent.
41
After which year do tenants become released from their covenants upon assignment of a lease?
1995
42
What is the test for a prescription?
Benefit over someone's land without permission, for 20 years, without challenge or contribution.
43
What is an implied easement by necessity?
If the property is landlocked and needs access to a road.
44
Does an implied easement by necessity - such as access to a road - pass with a property?
If the easement is continuous and apparent, necessary, was being used by the seller at the time the land was sold.
45
Does an implied easement by necessity - such as access to a road - pass with a property? If the easement is ___________ and _____________, necessary, and was being used by the seller at the time the land was sold.
continuous and apparent
46
Does an implied easement by necessity - such as access to a road - pass with a property? If the easement is continuous and apparent, necessary, and was ____________________ at the time the land was sold.
being used by the seller
47
Generally, to whom are positive covenants binding?
Only the original contracting parties.
48
What is the test to enforce a negative / restrictive covenant?
The covenant must 'touch and concern' the land of the covenantee, that the parties intended for it to remain in effect, at the time made the covenantee held the legal estate, the covenantee's successor now hold's the legal estate.
49
What is the test to enforce a negative / restrictive covenant? The covenant must ________________ the land of the covenantee, that the parties intended for it to remain in effect, at the time made the covenantee held the legal estate, the covenantee's successor now hold's the legal estate.
'touch and concern'
50
What is the test to enforce a negative / restrictive covenant? The covenant must 'touch and concern' the land of the covenantee, that the parties intended for it ________________, at the time made the covenantee held the legal estate, the covenantee's successor now hold's the legal estate.
to remain in effect
51
How long is an Energy performance Certificate (EPC) Valid for?
10 years
52
What are defects in title?
Missing documents - make the seller's solicitor investigate.
53
What must the seller's solicitor ask the lender for to ensure the sale proceeds are sufficient?
An indicative redemption figure.
54
What should the property information form contain information about?
Disputes, Building work / alterations, notices, flooding, services crossing the property, utilities connected, occupiers.
55
What are the two types of defects, and which ones should be disclosed?
Patent and latent defects. Latent defects must be disclosed.
56
If a seller breaches duty of disclosure with regard to latent defects, what rights does the buyer have?
Withdraw after exchange, claiming damages.
57
On a lease contract, what else must the landlord supply in addition to the usual documents required on a sale?
Copy of building insurance, and last 3 years services charges.
58
Who holds the buyer's deposit as stakeholder?
The seller's solcitor.
59
What is a full title guarantee?
That the seller is entitled to sell the property, that they will do all in their power to transfer the title, and that it is free of all charges and encumbrances.
60
What is a full title guarantee? That the seller is entitled to sell the property, that they will do all in their power to ________________, and that it is free of all charges and encumbrances.
transfer the title
61
What is a full title guarantee? That the seller is entitled to sell the property, that they will do all in their power to transfer the title, and that it is free of all charges and _____________.
encumbrances
62
When will the completion date be, if no date is stipulated on the exchange of contracts, and by what time?
20 working days after exchange, by 2pm.
63
Which search should always be carried out?
A local search.
64
What does a local search look for?
Financial registrations against the property, Planning agreements, Tree preservation orders, Listed building status, Road adoption, public rights of way, Whether the property abuts common land or a village green.
65
What does a local search look for? Financial registrations against the property, ______________ agreements, Tree preservation orders, Listed building status, Road adoption, public rights of way, Whether the property abuts common land or a village green.
Planning
66
What does a local search look for? Financial registrations against the property, Planning agreements, Tree preservation orders, Listed building status, ___________ adoption, public rights of way, Whether the property abuts common land or a village green.
Road
67
What does a local search look for? Financial registrations against the property, Planning agreements, Tree preservation orders, Listed building status, Road adoption, public rights of way, Whether the property abuts _______________ or a __________________.
common land or a village green
68
Aside from a local search, what are the two other searches that the buyer's solicitor will always do?
Drainage and Water, Environmental
69
If the property is unregistered, what search will additionally take place?
Index map search
70
If the seller is a company, what other search will additionally take place?
Company search
71
If the buyer is obtaining a mortgage, what additional search does the buyer's solicitor do?
Bankruptcy search
72
What must the buyer's solicitor insist the buyer do before exchanges?
Visit the property to look for any patent defects and occupiers.
73
What does deemed permission cover in planning?
Small home extensions, adding a porch or conservatory, or putting up a fence
74
As well as carrying out mining operations, what are the two main strands of the Planning Act 1990 that a land owner needs permission to obtain? Make _________________ and making material changes of use.
structural changes
75
As well as carrying out mining operations, what are the two main strands of the Planning Act 1990 that a land owner needs permission to obtain? Make structural changes and making __________________ of use.
material changes
76
If deemed planning permission does not cover the plans, what type of application must be made for?
Express planning permission.
77
If planning permission is sought and approved, within how long must the work start?
3 years
78
If outline permission is obtained, within how long must the work start?
5 years (though full planning permission must be granted in the first 3)
79
Within how long must a notice of enforcement be served, in relation to a planning breach?
10 years
80
Within how long must a notice of enforcement be served, in relation to a material change of use?
10 years
81
Within how long must a notice of enforcement be served, in relation to a listed building?
Any length.
82
Within how long of a breach of building regulations must the local authority take enforcement action?
10 years
83
What can a buyer do to protect themselves from breach of planning laws or building regulations after the relevant enforcement period has passed?
Ask the seller to provide indemnity insurance.
84
Do commercial buildings require planning permission to change use?
Yes. Most commercial buildings fall into the same bracket, but there is a separate class for public buildings such as libraries, exhibition halls, churches and law courts, and another specifically for small shops selling essential goods.
85
What is the search that is performed prior to completion?
Search with priority.
86
How long does the pre-completion search with priority provide priority for?
30 working days.
87
Which exchange method is Formula A? (Think A is first - therefore 1 (solicitor))
Seller's solicitor holds both signed parts plus deposit cheque. Seller's solicitor confirms both same and inserts exchange and completion dates on both.
88
What exchange method is Formula B?
Both solicitors hold clients signed part. Both solicitors confirm over phone that versions are the same. Each then sends their signed part to the other.
89
What exchange method is Formula C?
Where there is a chain. Two calls, first to confirm everyone ready, then the second to confirm actual exchange.
90
If completion date is more than two weeks after exchange, what could the solicitor do to protect buyer's position?
Register the estate contract on the charges register.
91
What search must a solicitor do prior to completion for unregistered land?
full land charges search - provides a period of 15 working days.
92
When does a title actually change hands (completion) for registered and unregistered land?
Registered - when registered at HMLR, Unregistered - upon completion.
93
On completion which solicitor acts as agent - and what do they do?
The seller's solicitor. Date and execute the transfer.
94
Within how long should stamp duty be paid?
14 days
95
What remedy does the buyer have if information was incorrect after exchange?
Damages. Can only rescind if error was fraudulent, or if the buyer took the property it would be SUBSTANTIALLY DIFFERENT in quality or quality.
96
After which time on completion day can damages be claimed for delay?
2pm. After which they are treated as having completed the following day.
97
If there is a long delay, what can either innocent party do?
Service a notice complete. Only if ready, willing and able. Default party then has 10 days. Time becomes of the essence.
98
If after 10 days of time being of the essence, the property has still not completed, what options are there for the BUYER?
Rescind the contract, reclaim deposit with interest, claim damages to put in position had seller performed, seek specific performance.
99
If after 10 days of time being of the essence, the property has still not completed, what options are there for the BUYER? Rescind the contract, reclaim _________________, claim damages to put in position had seller performed, seek specific performance.
deposit with interest
100
If after 10 days of time being of the essence, the property has still not completed, what options are there for the BUYER? Rescind the contract, reclaim deposit with interest, claim damages to put in position had seller performed, seek _________________.
specific performance
101
If after 10 days of time being of the essence, the property has still not completed, what options are there for the SELLER?
Rescind contract, retain deposit, resell property, claim damages (limited to difference between contract price and price resold for).
102
If after 10 days of time being of the essence, the property has still not completed, what options are there for the SELLER? Rescind contract, retain deposit, ____________ property, claim damages (limited to difference between contract price and price resold for).
resell
103
If after 10 days of time being of the essence, the property has still not completed, what options are there for the SELLER? _______ contract, retain deposit, resell property, claim damages (limited to difference between contract price and price resold for).
Rescind
104
If after 10 days of time being of the essence, the property has still not completed, what options are there for the SELLER? Rescind contract, retain _______________, resell property, claim damages (limited to difference between contract price and price resold for).
deposit,
105
If after 10 days of time being of the essence, the property has still not completed, what options are there for the SELLER? Rescind contract, retain deposit, resell property, claim damages (limited to _____________________).
difference between contract price and price resold for
106
What is the name of the protection a commercial client has which gives them a right to remain in the property unless the landlord uses a statutory method to terminate the lease?
Security of tenure.
107
What must happen for the landlord and tenant to contract out of the security of tenure?
Serve a health warning at least 14 days prior, tenant signs declaration confirming agree to health warning, lease must reference the health warning, the tenant's declaration and the agreement to contract out.
108
What must happen for the landlord and tenant to contract out of the security of tenure? Serve a _________________ at least 14 days prior, tenant signs declaration confirming agree to health warning, lease must reference the health warning, the tenant's declaration and the agreement to contract out.
health warning
109
What must happen for the landlord and tenant to contract out of the security of tenure? Serve a health warning at least 14 days prior, tenant signs ______________ confirming agree to health warning, lease must reference the health warning, the tenant's declaration and the agreement to contract out.
declaration
110
What is a S25 notice?
Landlord seeking to terminate tenancy
111
What is a S26 notice
Tenant informing landlord of desire for new lease.
112
Between how many months must s25 and s26 notices be served?
6 and 12 months.
113
What are grounds for a s25 notice?
Tenant breach of obligation (repair, persistent delays in rent) [DISCRETIONARY], landlord requires whole building for subsequent letting [DISCRETIONARY], availability of suitable alternative accommodation, landlord intends to demolish or reconstruct premises, landlord intends to occupy the premises.
114
What are grounds for a s25 notice? Tenant breach of obligation (___________ or _________________) [DISCRETIONARY], landlord requires whole building for subsequent letting [DISCRETIONARY], availability of suitable alternative accommodation, landlord intends to demolish or reconstruct premises, landlord intends to occupy the premises.
repair or persistent delays in rent
115
What are grounds for a s25 notice? Tenant breach of obligation (repair, persistent delays in rent) [DISCRETIONARY], landlord requires _______________ for subsequent letting [DISCRETIONARY], availability of suitable alternative accommodation, landlord intends to demolish or reconstruct premises, landlord intends to occupy the premises.
whole building
116
What are grounds for a s25 notice? Tenant breach of obligation (repair, persistent delays in rent) [DISCRETIONARY], landlord requires whole building for subsequent letting [DISCRETIONARY], availability of __________________, landlord intends to demolish or reconstruct premises, landlord intends to occupy the premises.
suitable alternative accommodation
117
What are grounds for a s25 notice? Tenant breach of obligation (repair, persistent delays in rent) [DISCRETIONARY], landlord requires whole building for subsequent letting [DISCRETIONARY], availability of suitable alternative accommodation, landlord intends to demolish or _______________ premises, landlord intends to occupy the premises.
reconstruct
118
What are grounds for a s25 notice? Tenant breach of obligation (repair, persistent delays in rent) [DISCRETIONARY], landlord requires whole building for subsequent letting [DISCRETIONARY], availability of suitable alternative accommodation, landlord intends to demolish or reconstruct premises, landlord intends to ______________ the premises.
occupy
119
When receiving a s26 from tenant, how long does the landlord have to respond?
2 months.
120
If the landlord intends to rely on requiring whole premises (for either letting as whole, demolishing or occupying) what compensation is payable?
The rateable value of the property, and if occupier for over 14 years, DOUBLE the rateable value.
121
What is the maximum fixed term a court can order a lease to run for?
15 years.
122
Within how long should a trial take place in Fast Track?
30 weeks
123
Which track is correct for a claim of £12,000
Fast Track
124
Which track is correct for personal injury of £1000
Small claims
125
What is the starting amount of claim for multi track?
£25,000
126
What are the typical leasehold covenants?
Pay rent, enjoy quiet enjoyment, make repairs where needed.
127
Must assignment of lease be by deed?
Yes
128
What is surrender of a lease?
Where the parties agree the tenant will give up possession to the landlord.
129
What is a lease 'merger'?
Where parties agree the landlord will transfer the reversion to the tenant.
130
What is a break clause in a lease?
An optional clause allowing the parties to terminate early.
131
What happens to the sublease, when the head-lease is brought to an end by expiry, notice to quit or forfeiture?
It also ends
132
What happens to the sublease, when the head-lease is brought to an end by surrender or merge?
The sublease continues under the new arrangement.
133
What are the three main factors to consider in boundary disputes?
To encourage a negotiated settlement to avoid litigation, declaration of property disputes can affect a sale, adverse possession - land registry may award title if there's a reasonable mistake as to boundaries.
134
What are the three main factors to consider in boundary disputes? To encourage a negotiated settlement to ____________________, declaration of property disputes can affect a sale, adverse possession - land registry may award title if there's a reasonable mistake as to boundaries.
avoid litigation
135
What are the three main factors to consider in boundary disputes? To encourage a negotiated settlement to avoid litigation, declaration of property disputes __________________, adverse possession - land registry may award title if there's a reasonable mistake as to boundaries.
can affect a sale
136
What are the three main factors to consider in boundary disputes? To encourage a negotiated settlement to avoid litigation, declaration of property disputes can affect a sale, adverse possession - land registry may award title if there's a _____________________________.
reasonable mistake as to boundaries
137
Standard wording used to draft a special condition
The sale includes the following fixtures and fittings: [list of fixtures]. The buyer is to pay for these fixtures in addition to the purchase price.
138
Standard wording used to insert provision for easement / covenant
The land is subject to the easements granted by a lease dated… made between… for a term of…
139
Standard wording used for shares of co-owners
Jane and David hold the property as tenants in common, with Jane owning 60% and David owning 40%
140
Transfer of land - what do we need to do with regard to the date?
Leave it blank.
141
Transfer of land - where the names don't match due to being married etc, what should be done?
Add a copy of the marriage certificate
142
Transfer of land - what should be done when purchasing a property held on trust?
Add details of a second trustee to ensure that the rights of any beneficiaries are overreached.
143
Transfer of land - who is the transferor and who is the transferee?
Property moves from the transferor (seller) to the transferee (buyer)
144
Transfer of land - which address should be used when drafting, in residential, for the transferee?
The NEW address they're moving to.
145
Transfer of land - which address should be used when drafting, in commercial?
The office address
146
Transfer of land - when drafting - which address should be used when purchasing a second home?
The main / primary address.
147
Transfer of land - drafting - should chattels be included in the purchase price?
No.
148
Transfer of land - Drafting - Declaration of trust.
The wording asks whether the property should be held on trust for themselves as joint tenants, tenants in common or merely on trust.
What should be written if it is a solo purchase?
Nothing, leave it blank.
149
Transfer of land - Drafting - what should be included in the section for additional provisions?
Any covenants.
150
Transfer of land - Drafting - as this is by deed, what additional requirements are required to execute the deed?
Full name of all transferors
In the presence of witnesses
This should include all transferees if the property is being purchased in multiple names
151
Transfer of PART of land - Drafting - what should be included that shows which part of land is being transferred?
The index map with the land highlighted in red.
152
Transfer of PART of land - Drafting - what colour is the land being retained usually edged in?
Blue
153
Transfer of PART of land - Drafting - will covenants of burden or benefit automatically pass on to the successors in title?
No, this would need to be stipulated.
154
Transfer of PART of land - Drafting - What is the effect of failing to stipulate covenants of part of land being transferred?
They won't pass with the property.
155
Transfer of PART of land - Drafting - What terms should be used for the land's benefit and burden of another?
Dominant and Servient land.
156
Transfer of PART of land - Drafting - What should be considered when rights of way would be changed to facilitate the transfer?
Just on foot, or vehicles?
Commercial vehicles allowed?
Certain time of day?
Maintenance agreements?
Access to the other property for maintenance?
157
Transfer of PART of land - Drafting - What factors should be considered when dealing with fences being added?
Height, and material.
158
Transfer of PART of land - Drafting - If there is to be a gate on the land, why would a covenant to keep it locked at all times be ineffective?
Because then nobody could ever go through it.
159
Wills - Drafting - Usual structure? [9 items]
Opening words (details of testator)
Revocation clause
Appointment of executors and trustees
[Appointment of guardians for minor children]
Non residuary gifts ie legacies / items
Residue, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age
Admin clause giving PRs + Trustees powers
Attestation clause
Signature of testator and witnesses
160
Wills - Drafting - Usual structure? [9 items]
Opening words (???????????????)
Revocation clause
Appointment of executors and trustees
[Appointment of guardians for minor children]
Non residuary gifts ie legacies / items
Residue, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age
Admin clause giving PRs + Trustees powers
Attestation clause
Signature of testator and witnesses
details of testator
161
Wills - Drafting - Usual structure? [9 items]
Opening words (details of testator)
?????????
Appointment of executors and trustees
[Appointment of guardians for minor children]
Non residuary gifts ie legacies / items
Residue, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age
Admin clause giving PRs + Trustees powers
Attestation clause
Signature of testator and witnesses
Revocation clause
162
Wills - Drafting - Usual structure? [9 items]
Opening words (details of testator)
Revocation clause
???????????????
[Appointment of guardians for minor children]
Non residuary gifts ie legacies / items
Residue, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age
Admin clause giving PRs + Trustees powers
Attestation clause
Signature of testator and witnesses
Appointment of executors and trustees
163
Wills - Drafting - Usual structure? [9 items]
Opening words (details of testator)
Revocation clause
Appointment of executors and trustees
[?????????????????????]
Non residuary gifts ie legacies / items
Residue, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age
Admin clause giving PRs + Trustees powers
Attestation clause
Signature of testator and witnesses
Appointment of guardians for minor children
164
Wills - Drafting - Usual structure? [9 items]
Opening words (details of testator)
Revocation clause
Appointment of executors and trustees
[Appointment of guardians for minor children]
?????????????????????
Residue, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age
Admin clause giving PRs + Trustees powers
Attestation clause
Signature of testator and witnesses
Non residuary gifts ie legacies / items
165
Wills - Drafting - Usual structure? [9 items]
Opening words (details of testator)
Revocation clause
Appointment of executors and trustees
[Appointment of guardians for minor children]
Non residuary gifts ie legacies / items
????????????, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age
Admin clause giving PRs + Trustees powers
Attestation clause
Signature of testator and witnesses
Residue
166
Wills - Drafting - Usual structure? [9 items]
Opening words (details of testator)
Revocation clause
Appointment of executors and trustees
[Appointment of guardians for minor children]
Non residuary gifts ie legacies / items
Residue, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age
????????????????????????
Attestation clause
Signature of testator and witnesses
Admin clause giving PRs + Trustees powers
167
Wills - Drafting - Usual structure? [9 items]
Opening words (details of testator)
Revocation clause
Appointment of executors and trustees
[Appointment of guardians for minor children]
Non residuary gifts ie legacies / items
Residue, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age
Admin clause giving PRs + Trustees powers
????????????????????
Signature of testator and witnesses
Attestation clause
168
Wills - Drafting - Usual structure? [9 items]
Opening words (details of testator)
Revocation clause
Appointment of executors and trustees
[Appointment of guardians for minor children]
Non residuary gifts ie legacies / items
Residue, on trust if necessary eg where there's a trust for beneficiaries achieving a contingent age
Admin clause giving PRs + Trustees powers
Attestation clause
??????????????????????
Signature of testator and witnesses
169
Wills - Drafting - Example of opening words?
This is the last will and testament of me John Smith of 1 High Street, London, made on 01.01.01.
170
Wills - Drafting - Example revocation clause
I revoke all former wills and testamentary dispositions made by me.
171
Wills - Drafting - Appointment of executors?
I appoint David Smith of 2 High Street London, and Ian Smith of 3 High Street London to be my executors.
172
Wills - Drafting - Appointment of executors and trustees?
I appoint David Smith of 2 High Street London, and Ian Smith of 3 High Street London (in my will called “My Trustees”) to be my executors and trustees.
173
Wills - Drafting - Example appointment of guardian to children?
If my wife dies before my I appoint Jane Smith of 4 High Street London and Mary Smith of 5 High Street London to be the guardians of my children who are under 18.
174
Wills - Drafting - What is a pecuniary legacy?
A specific gift of cash
175
Wills - Drafting - Standard gift of cash?
I GIVE to Bob Smith of 6 High Street, London [provided he survives me by 28 days] the sum of £1000 [free of tax]
176
Wills - Drafting - why are the words 'provided he survives me by 28 days' included?
To prevent unnecessary costs in administering both estates in a short space of time.
177
Wills - Drafting - How should a gift to charity be worded?
I give to Royal National Institute for the Blind (“the Charity”) for its general charitable purposes the sum of £5000. If at my death the charity has ceased to exist or has amalgamated with another charity or has changed its name my Trustees shall pay it to the charitable organisation which they consider most nearly fulfils the objects of the Charity. The receipt of a person who appears to be a proper officer of the Charity or any substituted charity shall be a sufficient discharge to my Trustees.
178
Wills - Drafting - How should a specific legacy for an engagement ring be worded?
I GIVE to Sally Smith of 7 High Street, London [provided she survives me by 28 days] [my engagement ring]
179
Wills - Drafting - How should a gift of chattels be worded?
I GIVE to Sally Smith of 7 High Street, London [provided she survives me by 28 days] my personal chattels as defined by Administration of Estates Act 1925 [s/55(1)(x)] [except those which are the subject of specific gifts in this my will]
180
Wills - Drafting - How should the residuary be worded?
I GIVE all my estate not otherwise disposed of to [Person / People in equal shares] absolutely.
181
Wills - Drafting - How should a substitution clause for the residuary be worded?
If [Person] predeceases me, I give my share of the residuary to [New person], absolutely.
182
Wills - Drafting - How should a residuary gift to two children equally be worded?
To pay my Residuary Estate to such of my children as are living at my death [who attain the age of [21]] and if more than one in equal shares
183
Wills - Drafting - How should a residuary gift to two children equally, but with substitution clause for THIER children, to make clear to the trustees what should happen, be drafted?
If any child of mine should die before me or before attaining a vested interest in my Residuary Estate leaving a child or children living at his or her death, such child or children shall provided they attain the age of 18 take by substitution and if more than one in equal shares the share of my Residuary Estate which his, her or their parent would have taken had he or she survived me and attained a vested interest.
184
Wills - Drafting - What does the residuary assume has already been paid?
Funeral costs and any debts.
185
Wills - Drafting - What happens with regard to items / residuary passing to issue before the issue have turned 18?
It's held on trust by the trustees instead of being executed by the executors.
186
Wills - Drafting - How should wording for direction with regard to freedom of trustee investment be drafted?
My Trustee may invest trust money with the same full and unrestricted freedom in their choice of investments as if they were an absolute beneficial owner including the power to purchase land wherever situated and to allow any dwelling to be used as a residence by any person or persons having an interest or prospective interest in my Residuary Estate upon such terms and conditions from time to time as my Trustees in their absolute discretion may think fit.
187
Wills - Drafting - Standard wording for requirement to insure property?
To insure against loss or damage howsoever arising to any property for the time being comprised in my Residuary Estate to any amount and to pay all premiums for any such insurance at their discretion out of the income or capital of my Residuary Estate of the property itself.
188
Wills - Drafting - Standard wording to allow power to accept receipt for minor?
In any case where they have an obligation or a discretion under the provisions of my will or under the general law to pay income or capital to or for the benefit of a minor to discharge that obligation or to exercise that discretion if they think fit by making payment either to a parent or a guardian of the minor or to the minor personally if of the age of 16 at least and so that their respective receipts shall be a full discharge to my Trustees who shall not be required to see to the application of any income or capital paid.
189
Wills - Drafting - Standard wording allowing a professional person to charge for business carried out in connection with the estate?
Any of my Trustees being a solicitor or other person engaged in any profession or business shall be entitled to charge and be paid all professional and other charges for any business or act done by him or his firm in connection with the administration of my estate or the trusts hereof (including acts which an executor or trustee could have done personally) on the same basis as if he were not one of my Trustees but employed to carry out the work on their behalf.
190
Wills - Drafting - Standard wording for dating and signing?
IN WITNESS whereof I have hereunto set my hand this __________ day of 20__
Signed by __________________
191
Wills - Drafting - Standard wording for witness signature?
In our joint presence and then by us in his / hers _________________________________
192
What are incorporeal hereditaments?
Rights, easements and rents - in others words, non physical aspects.
193
Who owns Gold and Silver found on land?
Crown
194
Can water be removed from land?
Yes, but need a licence.
195
Can minerals, coal, oil and gas be removed from land?
No, by statute
196
What is the test for use of land above property?
What is reasonably necessary for enjoyment of the property.
197
What are the two types of annexation tests?
Degree of annexation - to what degree is it physically attached
Purpose of annexation - to what degree is it a part of the presentation
198
What is a rentcharge?
Requires landowner to make periodic payments to the rentcharge owner (often a former owner) - could be to a developer towards a park or play area.
199
What are LEGAL interests in land? (5)
Mortgages
Easements
Rentcharge
Profit a prendre
Right of entry (usually in a lease or rentcharge).
200
What are LEGAL interests in land? (5)
??????
Easements
Rentcharge
Profit a prendre
Right of entry (usually in a lease or rentcharge).
Mortgages
201
What are LEGAL interests in land? (5)
Mortgages
????????????
Rentcharge
Profit a prendre
Right of entry (usually in a lease or rentcharge).
Easements
202
What are LEGAL interests in land? (5)
Mortgages
Easements
????????????
Profit a prendre
Right of entry (usually in a lease or rentcharge).
Rentcharge
203
What are LEGAL interests in land? (5)
Mortgages
Easements
Rentcharge
?????????
Right of entry (usually in a lease or rentcharge).
Profit a prendre
204
What are LEGAL interests in land? (5)
Mortgages
Easements
Rentcharge
Profit a prendre
Right ??????????? (usually in a lease or rentcharge).
Right of entry
205
What are three types of EQUITABLE interests in property?
Equitable mortgage (steps in where legal mortgage was imperfect)
Restrictive covenant
Estate contract (agreement to sell at later date)
206
Are equitable interest automatically binding?
Only if notice is given
207
What are overriding interests in property?
Interests which are capable of binding a buyer, that aren't registered.
208
What is the difference between equitable interests and overriding interests?
Equitable interests would normally be protected by entry on the register. Overriding interests would not be registered but are still capable of binding a buyer.
209
Are overriding interests valid in registered or unregistered property?
ONLY registered land.
210
Both legal and equitable interests must be made by what?
Contract and Deed
211
What are the requirements of a contract for land? (6)
Offer
Acceptance
Consideration
Intention to be bound
Capacity
In writing.
212
What are the requirements of a contract for land? (6)
????????
Acceptance
Consideration
Intention to be bound
Capacity
In writing.
Offer
213
What are the requirements of a contract for land? (6)
Offer
???????
Consideration
Intention to be bound
Capacity
In writing.
Acceptance
214
What are the requirements of a contract for land? (6)
Offer
Acceptance
??????????
Intention to be bound
Capacity
In writing.
Consideration
215
What are the requirements of a contract for land? (6)
Offer
Acceptance
Consideration
????????? to be bound
Capacity
In writing.
Intention
216
What are the requirements of a contract for land? (6)
Offer
Acceptance
Consideration
Intention to be bound
?????????
In writing.
Capacity
217
What are the requirements of a contract for land? (6)
Offer
Acceptance
Consideration
Intention to be bound
Capacity
In ????????
writing.
218
How must a deed be validly executed?
Signed
Witnessed
Delivered (agrees to be bound)
219
How can ownership be proven in unregistered land?
Good root of title (15 years)
220
What documents constitute a good root of title?
Conveyance on sale
Deed of gift
Mortgage deed
Assent
221
What conditions are required to prove good root of title on the document(s) being used?
At least 15 years old
Must deal with whole of legal and equitable estate
Adequate description of property
Not cast any doubt.
222
What is an epitome of title?
A collection of documents proving that there is a good root of title. It is a chronological list of documents, with those documents attached.
223
How will a buyer be bound by equitable interest in unregistered title purchase?
If notice is given. Usually via a land charge.
224
How are home rights protected in unregistered and registered title?
By a type F land charge in unregistered
By form HR1 in registered land.
However, a form A is used in registered land when a couple splits and their interests convert from joint tenants to tenants in common.
225
What is a C(i) land charge (unregistered)?
Puisne mortgage (second mortgage)
226
What is a C(iv) land charge (unregistered)?
An estate contract (future sale being protected)
227
What is a D(ii) land charge (unregistered)?
Restrictive covenant eg not to use the land as anything other than private dwelling
228
What is a D(iii) land charge (unregistered)?
Equitable easement - tried to be created by deed but was defective - equity steps in.
229
What is a F land charge (unregistered)?
Home occupation rights ie spouse's right to occupy the home.
230
Is it registered or unregistered land where charges are registered against an owner rather than the property?
Unregistered. Once registered it all goes on the registered system against the property.
231
Unregistered land
In what scenario (requires all 4 factors) will a buyer take a property free of equitable interest - known as doctrine of notice?
They can show they acted in good faith
A buyer for value
Acquired a legal interest or estate
No notice of equitable interest
232
Unregistered land
In what scenario (requires all 4 factors) will a buyer take a property free of equitable interest - known as doctrine of notice?
They can show they ???????????
A buyer for value
Acquired a legal interest or estate
No notice of equitable interest
acted in good faith
233
Unregistered land
In what scenario (requires all 4 factors) will a buyer take a property free of equitable interest - known as doctrine of notice?
They can show they acted in good faith
A buyer for ???????????
Acquired a legal interest or estate
No notice of equitable interest
value
234
Unregistered land
In what scenario (requires all 4 factors) will a buyer take a property free of equitable interest - known as doctrine of notice?
They can show they acted in good faith
A buyer for value
Acquired a ????????? or ?????????
No notice of equitable interest
legal interest or estate
235
Unregistered land
In what scenario (requires all 4 factors) will a buyer take a property free of equitable interest - known as doctrine of notice?
They can show they acted in good faith
A buyer for value
Acquired a legal interest or estate
No notice of ????????????
equitable interest
236
What four scenarios can override first registration of land, and are automatically binding upon first registration, even if buyer didn't know about them?
A lease granted for 7 years or less
Legal easement
Local land charge
Someone in actual occupation
237
What four scenarios can override first registration of land, and are automatically binding upon first registration, even if buyer didn't know about them?
A lease granted ??????????
Legal easement
Local land charge
Someone in actual occupation
for 7 years or less
238
What four scenarios can override first registration of land, and are automatically binding upon first registration, even if buyer didn't know about them?
A lease granted for 7 years or less
Legal ???????????
Local land charge
Someone in actual occupation
easement
239
What four scenarios can override first registration of land, and are automatically binding upon first registration, even if buyer didn't know about them?
A lease granted for 7 years or less
Legal easement
???????????? charge
Someone in actual occupation
Local land
240
What four scenarios can override first registration of land, and are automatically binding upon first registration, even if buyer didn't know about them?
A lease granted for 7 years or less
Legal easement
Local land charge
Someone ????????????
in actual occupation
241
Adverse possession - difference between unregistered and registered land?
In both scenarios - must have NOT had permission.
Unregistered: 12 years, owner loses right to recover, and squatter can apply to HMLR for rights to land.
Registered: 10 years, squatter gains right merely to apply for the property. If owner says no, that's it.
242
What are the three types of registers on registered property?
Property register
Proprietorship register
Charges register
243
Registered property
What is on the property register?
Address
Estate
Rights benefiting property
244
Registered property
What is on the proprietorship register?
Holder(s) of the legal estate
245
Registered property
What is on the Charges register?
Rights burdening the property
246
What events trigger first registration?
Conveyance
Assent
Deed of gift
Grant / assignment of 7+ year lease
247
Within how long of a triggering event must property be registered?
Two months.
248
What is the consequence of failing to register land within two months of a triggering event?
The estate reverts back to the previous holder.
249
What are the four different classes of title?
Title absolute
Qualified title
Possessory title
Good leasehold title
250
What is title absolute?
Can be freehold or leasehold.
Means the legal estate is taken with ALL benefiting interest (for example restrictive covenants)
251
What is a qualified title?
Imperfect title (very rare in practice)
252
What is possessory title?
In possession of the land, but not the documents
253
Classes of title - do they apply to both registered and unregistered title?
Mainly unregistered. Once first registration has taken place the class of title is noted, but has no real ongoing purpose.
254
What is a good leasehold title?
Can show own lease, but not landlord's freehold title in addition.
255
What is the process for upgrading a possessory title to title absolute?
If a possessory title is unchallenged for 12 years an application for absolute can be applied for.
256
What is the process for upgrading good leasehold title to absolute leasehold title?
Can upgrade by providing the landlord's freehold title.
257
What should a third party do where land they have an interest in is about to be registered?
Apply for a caution against first registration.
Then, the person with the benefit of the caution gets notified when someone tries to register it.
258
At what point does title pass in both unregistered and registered land?
Unregistered on completion
Registered on registration
259
What are the three most common overriding interest in land, for the purposes of the SQE?
Legal leases for 7 years or less
Unregistered legal easements
Interest of persons in actual occupation.
260
Is overreaching exclusive to unregistered property?
No, it can overreach the beneficial interest of people in unregistered or registered titles.
261
What are the requirements for someone in actual occupation to have a beneficial interest?
Often a spouse who contributed to purchase price (behind the scenes interest eg TOLATA)
Must NOT be on the title for this to apply.
262
Registered land: Adverse possession. Are there any circumstances where the owner's objection could be overridden?
Where it is unconscionable not to transfer it
A reasonable mistake as to boundaries
263
Does someone with an equitable interest only in property rather than legal and equitable still have the right to a share of a sale?
No. The person with an equitable interest can be involved in the selling of the house, but has no right to the proceeds.
264
What is unique about joint tenancy?
Survivorship
265
What is the effect on a property of the death of a joint tenant?
The property vests automatically and immediately in any joint tenant still living.
266
When does a trust of land automatically arise?
Whenever there is more than one owner, regardless of whether joint tenants or tenants in common.
267
In which way can tenants in common set out their share in the property that would be conclusive, regardless of financial contribution?
Via a declaration of trust.
268
What are the four methods to convert a joint tenancy to tenants in common?
Written notice
Treating their share as separate (eg contracting to sell, or disposing of a mortgage)
Mutual agreement
Bankruptcy of one party
269
What happens to a tenancy in common when one of the tenants becomes bankrupt?
The share is transferred to the trustee in bankruptcy.
270
What happens where there is no declaration of trust?
Equity follows the law, and so despite the law ALWAYS being joint tenants (even if the beneficial interest was tenants in common) then the absence of a declaration of trust means it will be equal.
271
What is the process to take a property free of a potential additional person's interest?
Overreaching. The money is paid to two or more trustees (owners).
272
Other than overreaching, what else can be done to ensure anyone else with potential beneficial interest can be purchased free from?
Obtain written release from beneficiary of their rights by having them sign the contract prior to exchange. This includes that they would vacate the property.
273
What should be done if the seller says that a co-owner has died?
Ask for a death certificate and / or overreach.
274
What is the difference between s14 TOLATA and s15 TOLATA?
s14 enables one co-owner to apply to court for an order relating to a trustees duties including an order to sell, relieving the trust's need to obtain consent, or declaring the nature of a person's interest.
s15 is a list of the TOLATA factors.
275
What are the factors contained within s15 TOLATA? (4)
Intentions of those who created the trust
Purposes for which the subject property is held
Welfare of any minor occupier
Interest of any secured creditor (bank)
276
What are the factors contained within s15 TOLATA? (4)
Intentions of ??????????????????????
Purposes for which the subject property is held
Welfare of any minor occupier
Interest of any secured creditor (bank)
those who created the trust
277
What are the factors contained within s15 TOLATA? (4)
Intentions of those who created the trust
???????????????????????????? is held
Welfare of any minor occupier
Interest of any secured creditor (bank)
Purposes for which the subject property
278
What are the factors contained within s15 TOLATA? (4)
Intentions of those who created the trust
Purposes for which the subject property is held
Welfare ?????????????????
Interest of any secured creditor (bank)
of any minor occupier
279
What are the factors contained within s15 TOLATA? (4)
Intentions of those who created the trust
Purposes for which the subject property is held
Welfare of any minor occupier
Interest of ??????????????
any secured creditor (bank)
280
What is the effect of a declaration of trust on a TOLATA claim?
Usually conclusive, but a challenger may be able to prove a different common intention.
281
What factors will be considered by the court in deviating from any declaration of trust?
The court will consider ALL the circumstances and may give the party the proportion it considers fair.
282
What is the likely effect of a lease that has no specified duration or term?
Void for uncertainty.
283
Must a lease be in writing?
Yes, by deed, unless they are for less than 3 years.
284
What is special about leases of three years or less?
If taken at market value they do not require a deed. These leases can be valid even if made orally
285
When will equity step in with regard to leases?
Where the deed was imperfect. If unregistered this can be achieved by a class C(iv) land charge. If registered then on the charges register.
286
What is a licence (note: not to assign)?
A mere personal right to use the land.
287
What is the difference between a lease and a license?
A lease comes with many statutory protections whereas a license does not.
288
What is significant to look out for where there is not exclusive possession of a property, or there is no money being paid?
It means it's likely to be a license rather than a lease.
Labelling an agreement a license rather than a lease does not mean it's a license, and it will in fact have the same protections as a lease.
289
What are lease covenants?
Stipulations that are part of the lease, binding landlord and tenant.
290
What are the common covenants found within a lease? (6)
Term / duration of lease
Amount of rent
Covenant of quiet enjoyment
Tenant to maintain repair
Restrictions on use
Restrictions on alterations
291
What are the common covenants found within a lease? (6)
??????????? of lease
Amount of rent
Covenant of quiet enjoyment
Tenant to maintain repair
Restrictions on use
Restrictions on alterations
Term / duration
292
What are the common covenants found within a lease? (6)
Term / duration of lease
Amount of ??????
Covenant of quiet enjoyment
Tenant to maintain repair
Restrictions on use
Restrictions on alterations
rent
293
What are the common covenants found within a lease? (6)
Term / duration of lease
Amount of rent
Covenant of ???????????
Tenant to maintain repair
Restrictions on use
Restrictions on alterations
quiet enjoyment
294
What are the common covenants found within a lease? (6)
Term / duration of lease
Amount of rent
Covenant of quiet enjoyment
Tenant to ????????????
Restrictions on use
Restrictions on alterations
maintain repair
295
What are the common covenants found within a lease? (6)
Term / duration of lease
Amount of rent
Covenant of quiet enjoyment
Tenant to maintain repair
Restrictions on ???
Restrictions on alterations
use
296
What are the common covenants found within a lease? (6)
Term / duration of lease
Amount of rent
Covenant of quiet enjoyment
Tenant to maintain repair
Restrictions on use
Restrictions on ???????
alterationsw
297
What is the covenant of quiet enjoyment in a lease?
The tenant can enjoy the property without unreasonable interference by landlord.
Landlord is not liable for lawful acts of tenants.
298
What restrictions on alteration are typically found in a lease?
Not to perform any building works
Decoration may require consent.
299
What remedies are available for breach of lease?
Forfeit
Damages
Injunction
For repair - self help clause
300
Can a Landlord automatically bring a lease to an end for a breach of covenant?
No, it is not automatically contained with in a lease.
Even when it is, the tenant has certain rights such as to settle arrears and to apply for relief from forfeiture.
301
What actions does a tenant have available when threatened with forfeiture?
Check whether the lease enables it (not automatically).
Offer to settle arrears.
Apply for relief from forfeiture.
302
When may a Landlord invoke the self-help clause (known as Jervis v Harris)?
When the tenant has failed to keep the building in repair. The Landlord must give the tenant notice of the work to be done, and they have failed to do it.
303
What is a Jervis v Harris clause?
Used in breach of repair covenant. Where the tenant has failed to keep the building in repair, the landlord may enter the property to effect repairs.
304
Who pays for the repairs when the Landlord has invoked the Self-help clause in Jervis v Harris?
The tenant, as a debt.
305
What is assignment of a lease?
The sale of the remainder of the lease for a third party. Very common in Commercial property.
306
What must a tenant gain from their landlord in order to assign a lease?
License to assign.
307
What is significant about January 1995 in lease assignment?
Prior to Jan 1995 any Tenant looking to assign remained fully liable to the Landlord, even after assignment. This meant that a breach of covenant left both the original and subsequent tenant were liable.
After Jan 1995 the outgoing tenant was released from liability, meaning only the incoming tenant was directly liable to the Landlord.
308
What is an authorised guarantee agreement (AGA)?
A requirement by a Landlord to guarantee the incoming tenant's performance.
309
Is the requirement for an authorised guarantee agreement included as standard in a lease?
No.
310
Does an authorised guarantee agreement extend beyond the next incoming client?
No. The incoming tenant would then need a new AGA for the next, and so on.
311
What is an absolute covenant on assignement?
It is where there is to be no assignment of the lease permitted at all without the Landlord's consent, and the Landlord is under no obligation to provide reasoning for any refusal.
312
If there is a valid will with an executor appointed, but the will fails to deal with the whole estate, does the executor have the power to deal with the partial intestacy or must they apply for grant of letters with will annexed?
They have the power to deal with both the will and the part intestacy.
313
Under what circumstances would it be unconscionable to dispossess an adverse possessor?
For instance the possessor has a legitimate claim to the land based on a mistake as to the boundary, and the mistake was reasonable.
314
What is a qualified covenant on assignment?
It means that assignment is generally possible but usually with the landlord's consent. In this instance statute determines that consent must not be unreasonably withheld.
315
To what do the terms dominant and servient tenement relate?
The dominant tenement is the property which enjoys the rights over another
The servient tenement is the property that suffers the burden of another property having rights over it.
316
What are easements?
Where one property has a right over another.
317
What are common types of easements?
Right of way (by foot or vehicle)
Utility access
Drainage
318
What is an easement of necessity?
Where it's necessary for an easement to automatically arise in order for a property to meet an adjoining road where there is no other option. This can give rise to a legal easement, even though there is no deed.
319
How is an easement formed formally?
By deed, and then placed in the Property register (Dominant tenement) and the Charges register (Servient tenement), as applicable.
320
Can easements be informal?
Yes, for example by necessity but also by common intention and prior use.
321
What are the two types of profit a prendre?
Appurtenant and in gross.
322
What is a profit a prendre appurtenant?
A right to take something from land, that is attached to the land. It is not transferrable in it's own right.
323
What is a profit a prendre in gross?
A right to take something from the land, that is attached to the land. It IS transferrable in it's own right.
324
Is an informal easement binding?
If it's informal it means it's not effective in law, but may be covered by equity, especially if it contains all terms and is signed.
325
What is an easement by reservation?
Where the seller retains the right to use a portion of the land for a specific purpose.
326
Other than expressly granted easements, how else can easements arise?
By prescription or by implied grant.
327
What determines whether an easement is effective at law or merely by equity?
The existence of a deed. However, necessity can also be effective at law, without a deed.
328
How can an easement arise through prescription? (2)
Used without challenge for 20 years.
Without force, secrecy or permission
329
How can an easement arise through prescription? (2)
Used without challenge for ????????.
Without force, secrecy or permission
20 years
330
How can an easement arise through prescription? (2)
Used without challenge for 20 years.
Without ?????, secrecy or permission
force
331
How can an easement arise through prescription? (2)
Used without challenge for 20 years.
Without force, ??????? or permission
secrecy
332
How can an easement arise through prescription? (2)
Used without challenge for 20 years.
Without force, secrecy or ???????
permission
333
Other than express grant, or prescription, how else can easements arise?
Through implied grant.
334
How can implied grant of easement arise?
By necessity (such as access)
By common intention
By existing use
335
What is the test for a grant of easement by existing use? (3 strands)
It requires that the dominant and servient parcels of land were both previously held by one owner.
-and-
The easement is CONTINUOUS, APPARENT and NECESSARY.
-and-
Has been, and was, used by the seller for the benefit of the land now being sold.
336
What is the test for a grant of easement by existing use?
It requires that the dominant and servient parcels of land were both ?????????????.
-and-
The easement is CONTINUOUS, APPARENT and NECESSARY.
-and-
Has been, and was, used by the seller for the benefit of the land now being sold.
previously held by one owner
337
What is the test for a grant of easement by existing use?
It requires that the dominant and servient parcels of land were both previously held by one owner.
-and-
The easement is ??????????, APPARENT and NECESSARY.
-and-
Has been, and was, used by the seller for the benefit of the land now being sold.
CONTINUOUS
338
What is the test for a grant of easement by existing use?
It requires that the dominant and servient parcels of land were both previously held by one owner.
-and-
The easement is CONTINUOUS, ?????????? and NECESSARY.
-and-
Has been, and was, used by the seller for the benefit of the land now being sold.
APPARENT
339
What is the test for a grant of easement by existing use?
It requires that the dominant and servient parcels of land were both previously held by one owner.
-and-
The easement is CONTINUOUS, APPARENT and ?????????????.
-and-
Has been, and was, used by the seller for the benefit of the land now being sold.
NECESSARY
340
What is the test for a grant of easement by existing use?
It requires that the dominant and servient parcels of land were both previously held by one owner.
-and-
The easement is CONTINUOUS, APPARENT and NECESSARY.
-and-
Has been, and was, ?????????????? the land now being sold.
used by the seller for the benefit of
341
How is an easement recorded in unregistered property?
Via a D(iii) land charge, and this binds all parties.
342
What is the difference between a covenant and an easement?
Easement is the right to use another piece of land for a specific purpose.
Covenant is a legal obligation on a property owner.
Easements are usually permanent whereas covenants can be removed.
343
Is a covenant not to allow the fence on the eastern boundary to fall in to disrepair a positive or negative covenant?
Positive, despite the wording.
344
What is the key difference between positive and negative covenants?
Negative covenants require nothing to be done.
345
Why is it that positive covenants do not usually run with the land?
Lack of privity of contract.
To run with the land would require a new agreement.
346
Do negative covenants run with equity, law or both?
Generally only equity.
347
As well as whether the covenant is negative or positive, there is also a burden and benefit. What does this mean?
The burden of a negative covenant would prevent the owner being able to do something. The benefit will be for the neighbour who enjoys the fact that the the owner is unable to do a particular thing.
348
To bind successors in equity, a negative covenant's burden will pass if three conditions apply - what are they?
The covenant touches and concerns the land (ie isn't merely a personal right)
Burden was intended to run with the land (by the original parties - this is assumed automatically by statute, unless the parties state otherwise)
The successor in title has notice of the covenant (charges register / D(iii) land charge)
349
To bind successors in equity, a negative covenant's BURDEN will pass if three conditions apply - what are they?
The covenant ?????? and ???????? the land
Burden was intended to run with the land
The successor in title has notice of the covenant
touches and concerns
350
To bind successors in equity, a negative covenant's burden will pass if three conditions apply - what are they?
The covenant touches and concerns the land
Burden was ???????????? with the land
The successor in title has notice of the covenant
intended to run
351
To bind successors in equity, a negative covenant's burden will pass if three conditions apply - what are they?
The covenant touches and concerns the land
Burden was intended to run with the land
The successor in title has ?????????
notice of the covenant
352
What does touch and concern the land mean?
Actually concerns the land itself, rather than a mere personal right.
353
What is the assumption by statute that is in place unless the parties express otherwise, when it comes to binding a successor in equitable covenant of land?
That the parties intended it to run with the land.
354
In what way can a successor in title have notice of a covenant?
Either via an entry on the charges register, or D(iii) land charge (unregistered land).
355
What are the four ways that a BENEFIT to a restrictive covenant of land can pass?
If the covenant touches and concerns the land
Through annexation (benefit is attached to the land - assumed unless expressly excluded)
Through express agreement
As part of a building scheme
356
Who is bound by a positive covenant of land?
Only the original covenantor and covenantee.
357
How can a positive covenant pass at law? (this is rare) (5)
Where covered by indemnity for each successive buyer.
If accepting a benefit (such as use of a road) then must also accept the burden (payment of upkeep)
Covenant touches and concerns the land
Original covenantee held legal estate in land to be benefitted
Covenantee's successor it title now holds legal estate to land benefitted
358
How can a positive covenant pass at law? (this is rare) (5)
Where covered by ?????????? for each successive buyer.
If accepting a benefit (such as use of a road) then must also accept the burden (payment of upkeep)
Covenant touches and concerns the land
Original covenantee held legal estate in land to be benefitted
Covenantee's successor it title now holds legal estate to land benefitted
indemnity
359
How can a positive covenant pass at law? (this is rare) (5)
Where covered by indemnity for each successive buyer.
If accepting a benefit (such as use of a road) then must also accept ??????????????
Covenant touches and concerns the land
Original covenantee held legal estate in land to be benefitted
Covenantee's successor it title now holds legal estate to land benefitted
the burden (payment of upkeep)
360
How can a positive covenant pass at law? (this is rare) (5)
Where covered by indemnity for each successive buyer.
If accepting a benefit (such as use of a road) then must also accept the burden (payment of upkeep)
Covenant ????????????? the land
Original covenantee held legal estate in land to be benefitted
Covenantee's successor it title now holds legal estate to land benefitted
touches and concerns
361
How can a positive covenant pass at law? (this is rare) (5)
Where covered by indemnity for each successive buyer.
If accepting a benefit (such as use of a road) then must also accept the burden (payment of upkeep)
Covenant touches and concerns the land
???????????????? held legal estate in land to be benefitted
Covenantee's successor it title now holds legal estate to land benefitted
Original covenantee
362
How can a positive covenant pass at law? (this is rare) (5)
Where covered by indemnity for each successive buyer.
If accepting a benefit (such as use of a road) then must also accept the burden (payment of upkeep)
Covenant touches and concerns the land
Original covenantee held legal estate in land to be benefitted
Covenantee's ?????????? now holds legal estate to land benefitted
successor it title
363
What can a seller require of an incoming buyer to enter into, to provide that the covenant would be stuck to?
to pay into indemnity insurance
364
Where the seller has required an incoming buyer to purchase indemnity insurance against them sticking to a covenant, what recourse does a neighbour have should they stop paying?
The neighbour could potentially sue the previous owner.
365
Who benefits from indemnity insurance against breach of covenant by a buyer?
The seller of the house, to protect them from being sued by a neighbour. Should this then be breached the seller could sue their buyer.
366
In what way must a mortgage be made?
By deed.
367
What is an equitable mortgage?
Where parties attempted to enter into a mortgage but it was defective in some way.
Or, a mortgage arising from some other way, such as via a charge.
368
How is a mortgage recorded in registered and unregistered land?
On the charges register (registered)
Lender holds deeds (unregistered)
369
What options does a lender have for enforcement of a mortgage?
Sue for debt
Foreclose (lender becomes owner)
Appoint receiver
Take possession
Sell the land (by far the most common)
370
How many mortgage payments must be missed before a lender can take enforcement action?
At least two. Usually at least 3.
371
What options does a lender have for enforcement of a mortgage?
??? for debt
Foreclose (lender becomes owner)
Appoint receiver
Take possession
Sell the land (by far the most common)
Sue
372
What options does a lender have for enforcement of a mortgage?
Sue for debt
??????? (lender becomes owner)
Appoint receiver
Take possession
Sell the land (by far the most common)
Foreclose
373
What options does a lender have for enforcement of a mortgage?
Sue for debt
Foreclose (lender becomes owner)
Appoint ?????
Take possession
Sell the land (by far the most common)
receiver
374
What options does a lender have for enforcement of a mortgage?
Sue for debt
Foreclose (lender becomes owner)
Appoint receiver
Take ???????????
Sell the land (by far the most common)
possession
375
What options does a lender have for enforcement of a mortgage?
Sue for debt
Foreclose (lender becomes owner)
Appoint receiver
Take possession
??????????? (by far the most common)
Sell the land
376
If more than one mortgage, and enforcement action becomes necessary - in what order are the mortgages prioritised?
The first in time always takes priority.
377
What happens to a 2nd mortgage holder if a 1st mortgage holder decides to sell?
1st mortgage holder takes the property free of the second lender’s interest.
378
What happens if a borrowed continues to pay the first mortgage holder but defaults on the second, and the second mortgage holder wishes to take enforcement action?
The 2nd mortgage holder MUST pay off the 1st mortgage first. They can’t take anything for their debt until the 1st is fully paid off.
379
Under what circumstances can a solicitor represent both a lender and a buyer? (3)
The lender is an approved institution (ie a bank)
Standard certificate of title is provided
Solicitor maintains confidentiality between the two.
380
Under what circumstances can a solicitor represent both a lender and a buyer?
The lender is ???????????????
Standard certificate of title is provided
Solicitor maintains confidentiality between the two.
an approved institution (ie a bank)
381
Under what circumstances can a solicitor represent both a lender and a buyer?
The lender is an approved institution (ie a bank)
????????????? of title is provided
Solicitor maintains confidentiality between the two.
Standard certificate
382
Under what circumstances can a solicitor represent both a lender and a buyer?
The lender is an approved institution (ie a bank)
Standard certificate of title is provided
Solicitor ????????????? between the two.
maintains confidentiality
383
What should a solicitor give advice on where there is more than one buyer / seller?
Co-ownership advice
384
If clients are buying as tenants in common then what should the solicitor advise is set up?
A declaration of trust, setting out their shares of ownership.
385
What should a solicitor check very early, on the title documents?
Any change of names.
386
What is included on the PIF (Property information form)? (4)
Disputes
Building work
Utilities connected
Occupiers present
387
What is included on the PIF (Property information form)?
???????????
Building work
Utilities connected
Occupiers present
Disputes
388
What is included on the PIF (Property information form)?
Disputes
?????????
Utilities connected
Occupiers present
Building work
389
What is included on the PIF (Property information form)?
Disputes
Building work
?????????????
Occupiers present
Utilities connected
390
What is included on the PIF (Property information form)?
Disputes
Building work
Utilities connected
???????????????
Occupiers present
391
What is included on the Fittings and Contents form?
Personal property included / excluded
Price
392
What is in the contract package sent by the seller's solicitor?
Draft contract in duplicate
Property Information form
Fittings and contents form
Copy of seller's title (either epitome / root or official copy)
Copy of title plan
Any guarantees / planning permissions
393
What is in the contract package sent by the seller's solicitor?
??????? in duplicate
Property Information form
Fittings and contents form
Copy of seller's title (either epitome / root or official copy)
Copy of title plan
Any guarantees / planning permissions
Draft contract
394
What is in the contract package sent by the seller's solicitor?
Draft contract in duplicate
?????????????? form
Fittings and contents form
Copy of seller's title (either epitome / root or official copy)
Copy of title plan
Any guarantees / planning permissions
Property Information
395
What is in the contract package sent by the seller's solicitor?
Draft contract in duplicate
Property Information form
?????????????? form
Copy of seller's title (either epitome / root or official copy)
Copy of title plan
Any guarantees / planning permissions
Fittings and contents
396
What is in the contract package sent by the seller's solicitor?
Draft contract in duplicate
Property Information form
Fittings and contents form
????????????????? (either epitome / root or official copy)
Copy of title plan
Any guarantees / planning permissions
Copy of seller's title
397
What is in the contract package sent by the seller's solicitor?
Draft contract in duplicate
Property Information form
Fittings and contents form
Copy of seller's title (either epitome / root or official copy)
Copy of ?????????
Any guarantees / planning permissions
title plan
398
What is in the contract package sent by the seller's solicitor?
Draft contract in duplicate
Property Information form
Fittings and contents form
Copy of seller's title (either epitome / root or official copy)
Copy of title plan
Any ??????? / ????????? permissions
guarantees / planning
399
Which type of defects need to be disclosed?
Latent defects
Not patent defects - think - patently obvious.
400
What is the consequence of not disclosing latent defects?
Rescind the contract
Claim damages (eg deposit / other losses)
401
What is the consequence of wilfully attempting to hide patent defects?
Liable in tort.
402
Who bears the responsibility for discovering patent defects?
The buyer - caveat emptor (buyer beware)
403
Is the existence of an underground pipe a latent or patent defect?
Latent - couldn't be discovered through reasonable search by a buyer.
404
Is the existence of ants in the wall a latent or patent defect?
Patent - buyer should have inspected (apparently!)
405
What is included in a contract package for a NEW lease? (4)
Draft contract with lease annexed
Seller's freehold title
PIF (Property information form)
Replies to standard pre contract enquiries (eg boundaries, disputes and services supplied to the flat)
406
What is included in a contract package for a NEW lease?
????????? with lease annexed
Seller's freehold title
PIF (Property information form)
Replies to standard pre contract enquiries (eg boundaries, disputes and services supplied to the flat)
Draft contract
407
What is included in a contract package for a NEW lease?
Draft contract with lease annexed
Seller's ????????????
PIF (Property information form)
Replies to standard pre contract enquiries (eg boundaries, disputes and services supplied to the flat)
freehold title
408
What is included in a contract package for a NEW lease?
Draft contract with lease annexed
Seller's freehold title
PIF ????????????????????
Replies to standard pre contract enquiries (eg boundaries, disputes and services supplied to the flat)
(Property information form)
409
What is included in a contract package for a NEW lease?
Draft contract with lease annexed
Seller's freehold title
PIF (Property information form)
Replies to standard pre contract enquiries (eg ?????????????????????)
boundaries, disputes and services supplied to the flat
410
What is included in a contract package for a NEW BUILD lease? (5)
1. a copy of the planning permission and building regulations consent
2. agreements with LA or local water company relating to roads, street lights, drainage etc
3. new building warranty (for builds less than 10 years old)
4. A service charge budget
5. Details of management company responsible for maintaining common areas
411
What is included in a contract package for a NEW BUILD lease? (5)
????????????? & ???????? regulations consent
Utilities agreements, inc street lights, drainage etc
New build warranty
Service charge budget
Management company info
Planning permission & building
412
What is included in a contract package for a NEW BUILD lease? (5)
Planning permission & building regulations consent
?????????????, inc street lights, drainage etc
New build warranty
Service charge budge
Management company info
Utilities agreements
413
What is included in a contract package for a NEW BUILD lease? (5)
Planning permission & building regulations consent
Utilities agreements, inc street lights, drainage etc
New build ?????????
Service charge budget
Management company info
warranty
414
What is included in a contract package for a NEW BUILD lease? (5)
Planning permission & building regulations consent
Utilities agreements, inc street lights, drainage etc
New build warranty
Service charge budget
Management company info
415
What is included in a contract package for a NEW BUILD lease? (5)
Planning permission & building regulations consent
Utilities agreements, inc street lights, drainage etc
New build warranty
Service charge budget
??????????????? info
Management company
416
What is contained in contract package for assignment of existing lease? (8)
i. Draft contract in duplicate
ii. Official copies of leasehold title and plan
iii. Copy of the lease
iv. PIF, Leasehold information form, and fittings and contents form
v. Copy of landlord’s freehold register of title and plan
vi. Insurance policy for whole building, latest premium receipt
vii. Copy of the last three years services charge accounts
viii. If property less than 10 years old, copy of new build warranty, planning permissions and building regs consent
417
What is contained in contract package for assignment of existing lease? (8)
i. ???????????????? in duplicate
ii. Official copies of leasehold title and plan
iii. Copy of the lease
iv. PIF, Leasehold information form, and fittings and contents form
v. Copy of landlord’s freehold register of title and plan
vi. Insurance policy for whole building, latest premium receipt
vii. Copy of the last three years services charge accounts
viii. If property less than 10 years old, copy of new build warranty, planning permissions and building regs consent
Draft contract
418
What is contained in contract package for assignment of existing lease? (8)
i. Draft contract in duplicate
ii. Official copies of ??????????
iii. Copy of the lease
iv. PIF, Leasehold information form, and fittings and contents form
v. Copy of landlord’s freehold register of title and plan
vi. Insurance policy for whole building, latest premium receipt
vii. Copy of the last three years services charge accounts
viii. If property less than 10 years old, copy of new build warranty, planning permissions and building regs consent
leasehold title and plan
419
What is contained in contract package for assignment of existing lease? (8)
i. Draft contract in duplicate
ii. Official copies of leasehold title and plan
iii. Copy of the lease
iv. PIF, Leasehold information form, and ???????????? form
v. Copy of landlord’s freehold register of title and plan
vi. Insurance policy for whole building, latest premium receipt
vii. Copy of the last three years services charge accounts
viii. If property less than 10 years old, copy of new build warranty, planning permissions and building regs consent
fittings and contents
420
What is contained in contract package for assignment of existing lease? (8)
i. Draft contract in duplicate
ii. Official copies of leasehold title and plan
iii. Copy of the lease
iv. PIF, Leasehold information form, and fittings and contents form
v. Copy of landlord’s ????????? of title and plan
vi. Insurance policy for whole building, latest premium receipt
vii. Copy of the last three years services charge accounts
viii. If property less than 10 years old, copy of new build warranty, planning permissions and building regs consent
freehold register
421
What is contained in contract package for assignment of existing lease? (8)
i. Draft contract in duplicate
ii. Official copies of leasehold title and plan
iii. Copy of the lease
iv. PIF, Leasehold information form, and fittings and contents form
v. Copy of landlord’s freehold register of title and plan
vi. ???????????? for whole building, latest premium receipt
vii. Copy of the last three years services charge accounts
viii. If property less than 10 years old, copy of new build warranty, planning permissions and building regs consent
Insurance policy
422
What is contained in contract package for assignment of existing lease? (8)
i. Draft contract in duplicate
ii. Official copies of leasehold title and plan
iii. Copy of the lease
iv. PIF, Leasehold information form, and fittings and contents form
v. Copy of landlord’s freehold register of title and plan
vi. Insurance policy for whole building, latest premium receipt
vii. Copy of the last ?????? years services charge accounts
viii. If property less than 10 years old, copy of new build warranty, planning permissions and building regs consent
last three years
423
What is contained in contract package for assignment of existing lease? (8)
i. Draft contract in duplicate
ii. Official copies of leasehold title and plan
iii. Copy of the lease
iv. PIF, Leasehold information form, and fittings and contents form
v. Copy of landlord’s freehold register of title and plan
vi. Insurance policy for whole building, latest premium receipt
vii. Copy of the last three years services charge accounts
viii. If property less than 10 years old, copy of ???????????????? and building regs consent
new build warranty, planning permissions
424
What are contained in the standard conditions of sale, used in all residential transactions? (8)
i. Particulars of sale – name of parties, freehold / leasehold, type of guarantee, completion date, purchase price
ii. Standard conditions of sale - inclusive of VAT, 10% deposit, related sale means deposit can be used, deposits held by seller's solicitor as stakeholder
iii. Special conditions of sale – specific to transaction ie vacant on completion, timelines for completion
iv. Seller's title to property
v. Any specific obligations (covenants) to be passed on. Standard conditions of sale provide that the buyer agrees to perform the obligation and to indemnify the seller if the buyer breaches the obligation in future.
vi. Risk of loss passes to buyer on exchange of contracts.
vii. Seller has no duty to insure after exchange, though both parties usually will.
viii. If no completion date inserted, the standard conditions provide that completion will be 20 WORKING days after exchange.
425
What are contained in the standard conditions of sale, used in all residential transactions? (8)
i. Particulars of sale – ???????????????
ii. Standard conditions of sale - inclusive of VAT, 10% deposit, related sale means deposit can be used, deposits held by seller's solicitor as stakeholder
iii. Special conditions of sale – specific to transaction ie vacant on completion, timelines for completion
iv. Seller's title to property
v. Any specific obligations (covenants) to be passed on. Standard conditions of sale provide that the buyer agrees to perform the obligation and to indemnify the seller if the buyer breaches the obligation in future.
vi. Risk of loss passes to buyer on exchange of contracts.
vii. Seller has no duty to insure after exchange, though both parties usually will.
viii. If no completion date inserted, the standard conditions provide that completion will be 20 WORKING days after exchange.
name of parties, freehold / leasehold, type of guarantee, completion date, purchase price
426
What are contained in the standard conditions of sale, used in all residential transactions? (8)
i. Particulars of sale – name of parties, freehold / leasehold, type of guarantee, completion date, purchase price
ii. Standard conditions of sale - ??????????
iii. Special conditions of sale – specific to transaction ie vacant on completion, timelines for completion
iv. Seller's title to property
v. Any specific obligations (covenants) to be passed on. Standard conditions of sale provide that the buyer agrees to perform the obligation and to indemnify the seller if the buyer breaches the obligation in future.
vi. Risk of loss passes to buyer on exchange of contracts.
vii. Seller has no duty to insure after exchange, though both parties usually will.
viii. If no completion date inserted, the standard conditions provide that completion will be 20 WORKING days after exchange.
inclusive of VAT, 10% deposit, related sale means deposit can be used, deposits held by seller's solicitor as stakeholder
427
What are contained in the standard conditions of sale, used in all residential transactions? (8)
i. Particulars of sale – name of parties, freehold / leasehold, type of guarantee, completion date, purchase price
ii. Standard conditions of sale - inclusive of VAT, 10% deposit, related sale means deposit can be used, deposits held by seller's solicitor as stakeholder
iii. Special conditions of sale –?????????????
iv. Seller's title to property
v. Any specific obligations (covenants) to be passed on. Standard conditions of sale provide that the buyer agrees to perform the obligation and to indemnify the seller if the buyer breaches the obligation in future.
vi. Risk of loss passes to buyer on exchange of contracts.
vii. Seller has no duty to insure after exchange, though both parties usually will.
viii. If no completion date inserted, the standard conditions provide that completion will be 20 WORKING days after exchange.
specific to transaction ie vacant on completion, timelines for completion
428
What are contained in the standard conditions of sale, used in all residential transactions? (8)
i. Particulars of sale – name of parties, freehold / leasehold, type of guarantee, completion date, purchase price
ii. Standard conditions of sale - inclusive of VAT, 10% deposit, related sale means deposit can be used, deposits held by seller's solicitor as stakeholder
iii. Special conditions of sale – specific to transaction ie vacant on completion, timelines for completion
iv. Seller's ????????????
v. Any specific obligations (covenants) to be passed on. Standard conditions of sale provide that the buyer agrees to perform the obligation and to indemnify the seller if the buyer breaches the obligation in future.
vi. Risk of loss passes to buyer on exchange of contracts.
vii. Seller has no duty to insure after exchange, though both parties usually will.
viii. If no completion date inserted, the standard conditions provide that completion will be 20 WORKING days after exchange.
title to property
429
What are contained in the standard conditions of sale, used in all residential transactions? (8)
i. Particulars of sale – name of parties, freehold / leasehold, type of guarantee, completion date, purchase price
ii. Standard conditions of sale - inclusive of VAT, 10% deposit, related sale means deposit can be used, deposits held by seller's solicitor as stakeholder
iii. Special conditions of sale – specific to transaction ie vacant on completion, timelines for completion
iv. Seller's title to property
v. Any ?????????????? Standard conditions of sale provide that the buyer agrees to perform the obligation and to indemnify the seller if the buyer breaches the obligation in future.
vi. Risk of loss passes to buyer on exchange of contracts.
vii. Seller has no duty to insure after exchange, though both parties usually will.
viii. If no completion date inserted, the standard conditions provide that completion will be 20 WORKING days after exchange.
specific obligations (covenants) to be passed on.
430
What are contained in the standard conditions of sale, used in all residential transactions? (8)
i. Particulars of sale – name of parties, freehold / leasehold, type of guarantee, completion date, purchase price
ii. Standard conditions of sale - inclusive of VAT, 10% deposit, related sale means deposit can be used, deposits held by seller's solicitor as stakeholder
iii. Special conditions of sale – specific to transaction ie vacant on completion, timelines for completion
iv. Seller's title to property
v. Any specific obligations (covenants) to be passed on. Standard conditions of sale provide that the buyer agrees to perform the obligation and to indemnify the seller if the buyer breaches the obligation in future.
vi. Risk of loss ?????????????????
vii. Seller has no duty to insure after exchange, though both parties usually will.
viii. If no completion date inserted, the standard conditions provide that completion will be 20 WORKING days after exchange.
passes to buyer on exchange of contracts.
431
What are contained in the standard conditions of sale, used in all residential transactions? (8)
i. Particulars of sale – name of parties, freehold / leasehold, type of guarantee, completion date, purchase price
ii. Standard conditions of sale
iii. Special conditions of sale – specific to transaction ie vacant on completion, timelines for completion
iv. Seller's title to property
v. Any specific obligations (covenants) to be passed on. Standard conditions of sale provide that the buyer agrees to perform the obligation and to indemnify the seller if the buyer breaches the obligation in future.
vi. Risk of loss passes to buyer on exchange of contracts.
vii. Seller has no ??????????????, though both parties usually will.
viii. If no completion date inserted, the standard conditions provide that completion will be 20 WORKING days after exchange.
duty to insure after exchange
432
What are contained in the standard conditions of sale, used in all residential transactions? (8)
i. Particulars of sale – name of parties, freehold / leasehold, type of guarantee, completion date, purchase price
ii. Standard conditions of sale - inclusive of VAT, 10% deposit, related sale means deposit can be used, deposits held by seller's solicitor as stakeholder
iii. Special conditions of sale – specific to transaction ie vacant on completion, timelines for completion
iv. Seller's title to property
v. Any specific obligations (covenants) to be passed on. Standard conditions of sale provide that the buyer agrees to perform the obligation and to indemnify the seller if the buyer breaches the obligation in future.
vi. Risk of loss passes to buyer on exchange of contracts.
vii. Seller has no duty to insure after exchange, though both parties usually will.
viii. If no completion date inserted, the standard conditions provide that completion will be ??????????? after exchange.
20 WORKING days
433
What additional / optional three typical special conditions can be inserted into the standard conditions of sale?
Stipulation of vacant on completion, or whether there is a tenant
Different time for completion
Any occupiers - must confirm relinquishment of any rights
434
Upon receiving the seller's contract package, what should the buyer's solicitor do? (3)
Raise pre-contract enquiries if there are any issues with title
For any defect in title, resolve to enter into a deed of variation or a deed a rectification
Where any issue of defect in title is not resolvable, require indemnity insurance from the seller.
435
Upon receiving the seller's contract package, what should the buyer's solicitor do? (3)
Raise ???????????? if there are any issues with title
For any defect in title, resolve to enter into a deed of variation or a deed a rectification
Where any issue of defect in title is not resolvable, require indemnity insurance from the seller.
pre-contract enquiries
436
Upon receiving the seller's contract package, what should the buyer's solicitor do? (3)
Raise pre-contract enquiries if there are any issues with title
For any defect in title, resolve to enter into a ???????????? or ?????????????????
Where any issue of defect in title is not resolvable, require indemnity insurance from the seller.
deed of variation or a deed a rectification
437
Upon receiving the seller's contract package, what should the buyer's solicitor do? (3)
Raise pre-contract enquiries if there are any issues with title
For any defect in title, resolve to enter into a deed of variation or a deed a rectification
Where any issue of defect in title is not resolvable, require ?????????????? from the seller.
indemnity insurance
438
Upon receiving title from the seller's solicitor the land is unregistered - what should the solicitor do? (3)
Check whether the land should already have been registered, and if so, ask that it is.
If not, check epitome of title reveals full 15 years root of title, with nothing casting doubt on the title.
Order index map search to reveal whether property is fully or partially registered.
439
What should happen where are financial land charges against the property by the local authority, revealed in a search, but not on the charges register? (for example where LA has paid fees for homeowner to go into LA care)
Raise enquiries, and ask seller to undertake to repay charges.
440
What does the local land charges register show? (5)
Enforceable charges or obligations affecting a property, including:-
Planning permissions
Conservation areas
Tree preservation orders
Any listed buildings
Adopted roads / rights of way
441
What does the local land charges register show? (5)
???????????
Conservation areas
Tree preservation orders
Any listed buildings
Adopted roads / rights of way
Planning permissions
442
What does the local land charges register show? (5)
Planning permissions
??????????????
Tree preservation orders
Any listed buildings
Adopted roads / rights of way
Conservation areas
443
What does the local land charges register show? (5)
Planning permissions
Conservation areas
?????????????
Any listed buildings
Adopted roads / rights of way
Tree preservation orders
444
What does the local land charges register show? (5)
Planning permissions
Conservation areas
Tree preservation orders
Any ?????????
Adopted roads / rights of way
listed buildings
445
What does the local land charges register show? (5)
Planning permissions
Conservation areas
Tree preservation orders
Any listed buildings
Adopted ???????????
roads / rights of way
446
Upon receiving title from the seller's solicitor the land is unregistered - what should the solicitor do? (3)
Check whether ?????????????, and if so, ask that it is.
If not, check epitome of title reveals full 15 years root of title, with nothing casting doubt on the title.
Order index map search to reveal whether property is fully or partially registered.
the land should already have been registered
447
Upon receiving title from the seller's solicitor the land is unregistered - what should the solicitor do? (3)
Check whether the land should already have been registered, and if so, ask that it is.
If not, check ??????????????????????? with ?????????????? on the title.
Order index map search to reveal whether property is fully or partially registered.
epitome of title reveals full 15 years root of title, with nothing casting doubt
448
Upon receiving title from the seller's solicitor the land is unregistered - what should the solicitor do? (3)
Check whether the land should already have been registered, and if so, ask that it is.
If not, check epitome of title reveals full 15 years root of title, with nothing casting doubt on the title.
Order ????????????????????????.
index map search to reveal whether property is fully or partially registered
449
What are the three main searches carried out when buying property?
Local land charge
Drainage and water
Environmental
450
What are the three main searches carried out when buying property?
???????????
Drainage and water
Environmental
Local land charge
451
What are the three main searches carried out when buying property?
Local land charge
???????????
Environmental
Drainage and water
452
What are the three main searches carried out when buying property?
Local land charge
Drainage and water
??????????????
Environmental
453
What are the main optional searches considered? (5)
Private road proposals
Major gas pipelines
Chancel liability
Common land
Bankruptcy (if buying with a mortgage)
454
What are the main optional searches considered? (5)
???????? proposals
Major gas pipelines
Chancel liability
Common land
Bankruptcy (if buying with a mortgage)
Private road
455
What are the main optional searches considered? (5)
Private road proposals
Major ?????????
Chancel liability
Common land
Bankruptcy (if buying with a mortgage)
gas pipelines
456
What are the main optional searches considered? (5)
Private road proposals
Major gas pipelines
???????? liability
Common land
Bankruptcy (if buying with a mortgage)
Chancel
457
What are the main optional searches considered? (5)
Private road proposals
Major gas pipelines
Chancel liability
?????????????
Bankruptcy (if buying with a mortgage)
Common land
458
What are the main optional searches considered? (5)
Private road proposals
Major gas pipelines
Chancel liability
Common land
???????????? (if buying with a mortgage)
Bankruptcy
459
What is chancel liability?
Only for unregistered land or not transferred since October 2013, checks for liability towards local church upkeep.
460
What is considered in an environmental search?
Determines whether there is any contaminated land (because owner would be liable for clean up costs)
461
What is considered in a drainage and water search?
Includes information about water supply, metres and public sewers
462
After the searches have been completed what should the solicitor always advise a buyer? (3)
To make another check of the property, specifically to look for evidence of rights of way, persons in occupation and to check the physical condition of the property.
463
In a commercial setting the property standard enquiries replaces the property information form - but what does it cover in addition?
Boundaries
Condition of property
Fire safety
Planning regulations
464
When should a common land search be carried out?
Where the property abuts common land or a village green.
465
After the searches have been completed what should the solicitor always advise a buyer?
To make another check of the property, specifically to look for ???????????????, persons in occupation and to check the physical condition of the property.
evidence of rights of way
466
After the searches have been completed what should the solicitor always advise a buyer?
To make another check of the property, specifically to look for evidence of rights of way, ?????????????? and to check the physical condition of the property.
persons in occupation
467
After the searches have been completed what should the solicitor always advise a buyer?
To make another check of the property, specifically to look for evidence of rights of way, persons in occupation and to check the ????????????.
physical condition of the property
468
If the seller of the property is a company, what sort of additional search should be carried out?
Company search (checking for liquidation / winding up proceedings)
469
If buyer is buying with a mortgage, what additional type of search will the buyer's solicitor carry out?
A bankruptcy search.
470
What type of developments are allowed under 'permitted developments'?
Small extensions, porches, conservation areas, porches, conservatories, putting up fences.
471
What type of permission is required for any development not covered by 'permitted developments'?
Express permission.
472
Within how long can the LA enforce building regulation breaches?
12 months in Wales, 10 years from completion of the work in England.
473
Within how long can breaches of planning permission be pursued by the LA?
10 years of the breach.
474
Why can't a client exchange quickly, when there's no chain but buying with a mortgage?
Searches would need to be carried out, which the bank providing the mortgage would require.
475
What details would need to be provided by a management company in a property with a lease?
Last 3 years service charges
Details of any sinking fund
Insurance policy
Any upcoming changes / costs
476
If there are upcoming large payments to a management company, for instance for renovations, what might a seller want to do?
Be prepared to lower the price to accommodate.
477
What should a buyer do if there is a piece of land which doesn't appear to be included in the sale?
Raise enquiry of solicitors
Check records at HMLR - INDEX MAP SEARCH
Check whether land has its own number
Enquire about what its used for
478
What are the conditions for adverse possession?
That the land must have been used WITHOUT permission, EXCLUSIVELY with intention to possess, and have actual possession.
479
What enquiries should be raised with regard to easements across the property being purchased?
What are they, what do they relate to?
If sewerage pipe - where, need to know so as not to dig into it.
Is there any contribution towards maintenance?
Is it in a good state of repair?
Is the seller prepared to sort any disrepair?
Is it an informal easement that needs to be made formal?
Will there be any cost implications to formalising a necessary easement?
480
If buying a piece of unregistered land annexed to the property, what can the buyer ask of the sellers?
That they register it before purchase.
Whether they would include it in the sale.
481
What is the downside of asking the seller to register land?
The delay created.
482
What can be done when representing a buyer, and planning permission was not obtained?
Ask the seller to seek retrospective planning permission.
483
What can be done when representing a seller and a search has identified lack of planning permission?
Seek retrospective planning permission.
484
If representing a buyer and seller fails to get retrospective planning permission, what advice should be given? (5)
Ascertain whether they would still go ahead with the purchase
Advise that they themselves would be liable
Ask if they could do without a particular purpose the permission was needed for
Would they pull down the part that planning permission was not obtained for?
They could ask for a reduction in price.
485
What is outline planning permission?
Permission as to the principle of the development, subject to any matters reserved.
486
If there are any reserved matters once an outline planning permission has been granted, within how long must a full application be obtained?
3 years.
487
What is detailed planning permission?
More thorough, and must be within 3 years of outline.
488
Within how long must works begin, once planning permission begins?
2 years, though this can be basic eg the foundations.
489
What can the developer be required to do if enforcement action is taken against building works?
The building could be pulled down or rebuilt.
490
What is the time limit for enforcement of alterations on a listed building?
None, can be at any time.
491
How does an official search with priority work for registered land?
It confers protection from any intervening interests for 30 days.
492
Within how long of a triggering event must a property have first registration?
2 months
493
If the buyer of a property is a company, then within how long must a mortgage be registered at companies house?
21 days.
494
Which of the three formulas (A, B, C) is the most common for exchange of contracts?
B
495
What is formula A in terms of exchange of contracts?
Seller's solicitor retains all paperwork, sends to buyer's solicitor upon exchange of contracts after having checked both parts are the same and inserts completion dates.
496
What is formula B in terms of exchange of contracts?
Each solicitor holds own client's signed contract. Solicitors confirm in a call that the versions are the same, and then send the signed part to each other.
497
What is formula C in terms of exchange of contracts?
Chain of transactions. Deposit monies make their way up the chain. Two calls made: one to confirm all ready, second to confirm the actual exchange.
498
If the completion date is more than 2 weeks following exchange, what should the buyer's solicitor do to protect the buyer's interest?
Register an estate contract (charge) on the register.
499
Ahead of the completion date, what should a solicitor contact the bank to confirm?
An updated redemption figure.
500
What is contained in the Information and Undertakings form? (4)
Details of accounts for transfer of funds
Amount due on completion
Location of keys
Undertaking to pay off mortgage
501
What is contained in the Information and Undertakings form? (4)
Details of ????????????????
Amount due on completion
Location of keys
Undertaking to pay off mortgage
accounts for transfer of funds
502
What is contained in the Information and Undertakings form? (4)
Details of accounts for transfer of funds
???????????? on completion
Location of keys
Undertaking to pay off mortgage
Amount due
503
What is contained in the Information and Undertakings form? (4)
Details of accounts for transfer of funds
Amount due on completion
Location of ??????
Undertaking to pay off mortgage
keys
504
What is contained in the Information and Undertakings form? (4)
Details of accounts for transfer of funds
Amount due on completion
Location of keys
Undertaking to ????????????
pay off mortgage
505
How does land transfer from a PR to a beneficiary?
Via an 'assent'
506
Leases - what is an engrossment?
A final lease document signed by landlord and tenant.
507
What is the process for establishing a priority period for unregistered land?
Full land charges search, which confers a 15 day priority period.
Note: This contrasts with 30 days for registered via an official search with priority.
508
What happens if another registration is attempted during a priority period?
It cannot be registered until after the priority period ends. Normally the property would have been registered by that point, so it would fail.
509
What should a solicitor do if the search with priority highlights any changes at this late stage?
Require the other side to deal with them.
510
What steps happen during the actual completion? (3)
Buyer's solicitor sends completion money
Seller's solicitor notifies buyer's solicitor IMMEDIATELY upon receipt.
Seller's solicitor notifies keyholder.
511
By what method is completion normally carried out?
Post
512
During completion, which solicitor normally acts as agent?
Seller's solicitor acts as agent for buyer, dating and executing the transfer and other relevant documents for the buyer's solicitor.
513
What is the latest point at which written confirmation can be sent regarding completion having been successful?
The end of the working day following completion.
514
What steps happen during the actual completion? (3)
Buyer's solicitor ?????????????
Seller's solicitor notifies buyer's solicitor IMMEDIATELY upon receipt.
Seller's solicitor notifies keyholder.
sends completion money
515
What steps happen during the actual completion? (3)
Buyer's solicitor sends completion money
????????????????? upon receipt.
Seller's solicitor notifies keyholder.
Seller's solicitor notifies buyer's solicitor IMMEDIATELY
516
What steps happen during the actual completion? (3)
Buyer's solicitor sends completion money
Seller's solicitor notifies buyer's solicitor IMMEDIATELY upon receipt.
Seller's solicitor ????????????
notifies keyholder.
517
Within how long must first registration take place following completion?
2 months
518
What must the solicitor do regarding a new leasehold for more than 7 years?
Register the lease as a new title at HMLR
519
SDLT:
Within how long of completion is SDLT required to be paid?
14 days
520
SDLT:
What did the NRB return to in March 2025?
£125,000
521
SDLT:
After the NRB of £125k, what percentage is SDLT calculated at?
2%
522
SDLT:
What is the additional percentage paid where the property being purchase is NOT a primary residence?
3% for EACH band.
523
SDLT:
What is the effect of the NRB when buying a second home?
There isn't one, so the 3% increase means the first £125,000 in a second home is still liable for a 3% SDLT bill.
524
SDLT:
What SDLT is paid on a new lease?
Either of both of the lease premium and the net present value of the total rent payable over the entire lease term.
525
SDLT:
What is the difference between lease premium and net present value?
Lease premium is a sum of money paid upfront at the beginning of a lease.
The net present value is the total amount payable over the lifetime of the lease.
526
What is a property buyer entitled to do if the any plan or statement in contract, or in the negotiation leading to the contract was misleading or accurate due to an error by the seller?
Buyer is entitled to claim damages to be put back into position as if property was as described.
Buyer can ONLY rescind contract if:-
Error or omission was fraudulent or reckless,
-or-
If the buyer took the property it would be substantially different in quality, quantity or tenure from what was expected, to their prejudice.
527
Under what conditions can a buyer rescind contract?
Error or omission made by seller was fraudulent or reckless
Property is substantially different in quality, quantity or tenure, to the buyer's prejudice.
528
How many working days before completion must a license to assign be forthcoming for a lease?
3 working days
529
What can an innocent party do if completion is later than 2pm on the designated day?
Claim damages and interest
530
Does a delay beyond 2pm on completion day give the innocent party a right to rescind?
No
531
How is interest calculated on a late completion?
Purchase price + contest, less any deposit.
Rate applied between completion date and actual completion date.
532
Where the late payment is from a buyer who is currently the seller's tenant, what happens instead of compensation?
Continue to take rental income.
533
Under what conditions can a party serve a notice to complete?
Party must be ready willing and able
534
When a notice to complete has been served, within how long must completion take place?
Defaulting party has 10 working days to complete, EXCLUDING day of service.
535
What options does the buyer have if the seller does not complete within 10 days of notice to complete? (3)
Rescind
Claim deposit money back with interest at the contract rate, AND
Claim damages (as far as is possible) to put buyer in position they would have been if seller had performed duty - giving credit for any reclaimed deposit).
536
What options does the buyer have if the seller does not complete within 10 days of notice to complete? (3)
??????????
Claim deposit money back with interest at the contract rate, AND
Claim damages (as far as is possible) to put buyer in position they would have been if seller had performed duty - giving credit for any reclaimed deposit).
Rescind
537
What options does the buyer have if the seller does not complete within 10 days of notice to complete? (3)
Rescind
Claim ????????????????????, AND
Claim damages (as far as is possible) to put buyer in position they would have been if seller had performed duty - giving credit for any reclaimed deposit).
deposit money back with interest at the contract rate
538
What options does the buyer have if the seller does not complete within 10 days of notice to complete? (3)
Rescind
Claim deposit money back with interest at the contract rate, AND
?????????????????????? if seller had performed duty - giving credit for any reclaimed deposit).
Claim damages (as far as is possible) to put buyer in position they would have been
539
What options does the seller have if the buyer does not complete within 10 days of notice to complete? (4)
Rescind
Retain deposit
Resell property, AND
Claim damages (difference between contract price and price resold out, taking into account the retained deposit)
540
What options does the seller have if the buyer does not complete within 10 days of notice to complete? (4)
??????????
Retain deposit
Resell property, AND
Claim damages (difference between contract price and price resold out, taking into account the retained deposit)
Rescind
541
What options does the seller have if the buyer does not complete within 10 days of notice to complete? (4)
Rescind
???????????
Resell property, AND
Claim damages (difference between contract price and price resold out, taking into account the retained deposit)
Retain deposit
542
What options does the seller have if the buyer does not complete within 10 days of notice to complete? (4)
Rescind
Retain deposit
?????????, AND
Claim damages (difference between contract price and price resold out, taking into account the retained deposit)
Resell property
543
What options does the seller have if the buyer does not complete within 10 days of notice to complete? (4)
Rescind
Retain deposit
Resell property, AND
Claim damages (????????????????????)
(difference between contract price and price resold out, taking into account the retained deposit)
544
What options does the seller have if the buyer does not complete within 10 days of notice to complete, BUT paid less than a 10% deposit?
The buyer must additionally pay the seller the difference between what they paid, and 10% of the purchase price.
545
Other than financial considerations, what other option does the innocent party have in light of the fact that property is considered unique?
Applying for specific performance.
546
What options are available for buyer AFTER completion?
Not many, because the contract merged with the deed and therefore are no longer actionable, however:-
Buyer can sue for breach of title guarantee or damages for misrepresentation (no matter whether fraudulent, reckless of innocent).
547
What is unique about commercial leases of less than 6 months?
Security of tenure does not apply.
548
What is security of tenure in a commercial lease?
Tenant has the right to stay in leased premises for additional term unless landlord opts for one of the statutory methods to terminate lease.
549
Under what three conditions can a landlord and tenant CONTRACT OUT of security of tenure?
i. Health warning notice served on potential tenant at least 14 days prior to completion of the lease
ii. Tenant signs a declaration confirming they have seen health warning and opted out.
iii. Lease must reference health warning, tenants declaration, and agreement to opt out.
550
Under what three conditions can a landlord and tenant CONTRACT OUT of security of tenure?
i. ???????????? served on potential tenant at least 14 days prior to completion of the lease
ii. Tenant signs a declaration confirming they have seen health warning and opted out.
iii. Lease must reference health warning, tenants declaration, and agreement to opt out.
Health warning notice
551
Under what three conditions can a landlord and tenant CONTRACT OUT of security of tenure?
i. Health warning notice served on potential tenant at least 14 days prior to completion of the lease
ii. Tenant signs ?????????????????????????.
iii. Lease must reference health warning, tenants declaration, and agreement to opt out.
a declaration confirming they have seen health warning and opted out
552
Under what three conditions can a landlord and tenant CONTRACT OUT of security of tenure?
i. Health warning notice served on potential tenant at least 14 days prior to completion of the lease
ii. Tenant signs a declaration confirming they have seen health warning and opted out.
iii. Lease must reference ???????????????, ????????????? and agreement to opt out.
health warning, tenants declaration
553
Within what time period should a s25 or s26 notice be served?
6-12 months from the end of the tenancy period.
554
What is a s25 notice?
Landlord requires premises back at end of term, or wishes to enter into a new lease with same tenant.
555
What is a s26 notice?
Tenant requires new lease.
556
What are the statutory grounds in which a landlord can file for a s25 notice? (5)
1. Breach of obligation (pay rent, repair, or other substantial breach)
2. Landlord requires WHOLE property for subsequent letting.
3. Availability of suitable alternative accommodation
4. Landlord intends to demolish or reconstruct premises
5. Landlord intends to occupy.
557
What are the statutory grounds in which a landlord can file for a s25 notice? (5)
1. ??????????????? (pay rent, repair, or other substantial breach) [Discretionary if taken to court]
2. Landlord requires WHOLE property for subsequent letting. [Discretionary if taken to court] [Compensation possible]
3. Availability of suitable alternative accommodation
4. Landlord intends to demolish or reconstruct and cannot do with tenant in occupation [Compensation possible]
5. Landlord intends to occupy. [Compensation possible]
Breach of obligation
558
What are the statutory grounds in which a landlord can file for a s25 notice? (5)
1. Breach of obligation (pay rent, repair, or other substantial breach) [Discretionary if taken to court]
2. Landlord ???????????? for subsequent letting. [Discretionary if taken to court] [Compensation possible]
3. Availability of suitable alternative accommodation
4. Landlord intends to demolish or reconstruct and cannot do with tenant in occupation [Compensation possible]
5. Landlord intends to occupy. [Compensation possible]
requires WHOLE property
559
What are the statutory grounds in which a landlord can file for a s25 notice? (5)
1. Breach of obligation (pay rent, repair, or other substantial breach) [Discretionary if taken to court]
2. Landlord requires WHOLE property for subsequent letting. [Discretionary if taken to court] [Compensation possible]
3. Availability of ???????????????
4. Landlord intends to demolish or reconstruct and cannot do with tenant in occupation [Compensation possible]
5. Landlord intends to occupy. [Compensation possible]
suitable alternative accommodation
560
What are the statutory grounds in which a landlord can file for a s25 notice? (5)
1. Breach of obligation (pay rent, repair, or other substantial breach) [Discretionary if taken to court]
2. Landlord requires WHOLE property for subsequent letting. [Discretionary if taken to court] [Compensation possible]
3. Availability of suitable alternative accommodation
4. Landlord intends to ???????????????[Compensation possible]
5. Landlord intends to occupy. [Compensation possible]
demolish or reconstruct and cannot do with tenant in occupation
561
What are the statutory grounds in which a landlord can file for a s25 notice? (5)
1. Breach of obligation (pay rent, repair, or other substantial breach) [Discretionary if taken to court]
2. Landlord requires WHOLE property for subsequent letting. [Discretionary if taken to court] [Compensation possible]
3. Availability of suitable alternative accommodation
4. Landlord intends to demolish or reconstruct and cannot do with tenant in occupation [Compensation possible]
5. Landlord intends to ???????????? [Compensation possible]
occupy.
562
Which of the 5 statutory grounds for a s25 notice attract compensation for the tenant?
Landlord requires whole property for subsequent letting
Landlord intends to demolish or reconstruct
Landlord intends to occupy
563
Can a s25 notice be served where the parties have opted out of security of tenure?
Yes, but it wouldn't be necessary as the tenant could be evicted anyway.
564
What is the process for a tenant serving a s26 notice?
Must do so 6-12 months prior to lease term expiring.
Landlord then has 2 months in which to inform whether they intend to oppose the request
If unwilling to issue new lease then must cite statutory grounds
565
Under the compensatory grounds of requiring the whole property (either for self or a new letting) or to demolish / reconstruct the premises, what level of compensation is the tenant entitled to?
The normal rateable value (set by the government).
If the tenant has been there for 14+ years then it is double the rateable value.
566
What happens if the parties can't agree on the new lease?
The court can set a new lease, to a maximum term of 15 years.
567
Capacity: What is the test?
That the person has mental capacity to make A will, but also THIS particular will.
Must have an awareness of what sorts of things are given in a will, and also some understanding of their estate.
568
What are the rules in s9 Wills Act 1837 with regard to executing a valid will?
A will must be in writing, signed by the testator (or someone in their presence and at their direction), and acknowledged or signed in the presence of two or more witnesses. These witnesses must also sign the will in the testator's presence.
569
Do the two (or more) witnesses need to sign in the presence of each other?
No, only in the presence of the testator.
570
Does the testator need to sign?
Yes, but they can have someone do it for them under their direction.
571
What is the general rule for presumption of capacity?
It is presumed. Any challenge to this needs to be shown by the person making the challenge.
572
What can a blind testator do with regard to capacity?
Use the attestation clause to detail how the will was formed, read and understood by the testator.
573
Is a will valid if the testator had capacity at the time but has since lost capacity?
Yes.
574
Does a will need an attestation clause?
It's not mandatory but very helpful.
575
Under what circumstances can a testator give a gift to the solicitor?
The solicitor should refuse, unless the testator took independent legal advice.
576
In order to challenge the validity of the will we think of FFFU. What does this mean?
Force
Fear
Fraud
Undue influence
577
What is undue influence within the context of making a will?
More than mere persuasion overpowered the testators volition.
578
What happens if it is found that a will *was* invalid due to FFFU?
It will be dealt with via the intestacy rules.
579
Force or Fear can also sometimes be called what?
Duress.
580
Is a mark or partial signature a valid signature?
It can be, but best to check the attestation clause.
581
Must the signature be at the end of a will?
Traditionally it is, but it's not essential.
582
Can a witness sign for the testator?
Only if directed to do so.
583
What is the standard wording for an attestation clause?
Signed by the testator in our presence and then by us in his / hers.
584
What happens if there is no attestation clause?
Evidence must be offered as to how the will came to be executed.
585
Can a will identifying another document become part of the will?
Only if it exists at the time of the date of the will.
586
Can a future intention to make a list, schedule or memorandum be included in a will?
No.
587
How can alterations be made to a will?
By using the same witnessing requirements as before. Or, can be via a codicil, which is a separate document referring to a will.
588
Up until when can a will be revoked?
Any time before death.
589
What is the effect on marriage of a will?
It is revoked entirely, unless written in anticipation of the marriage to a named individual.
590
What is the effect of divorce on a will?
The former spouse is treated as if died, but the rest of the will remains as written.
591
Does the testator have to have destroyed the will themself for it to count as revoked?
No, it can be under their instruction, in their presence.
592
What is the effect on accidentally destroying the will?
Nothing. For revocation to be effective the testator must additionally intend to destroy the will.
593
If a will is found mutilated after death, is it presumed revoked?
Yes, unless evidence can be shown to the contrary.
594
What is the effect on a will of knowledge that it had been destroyed with the intent of making a new one (but ended up dying first).?
It *might* be given effect.
595
Where a couple make mutual wills, can the second to die still revoke their will?
Yes, but a constructive trust will arise in favour of any beneficiaries harmed by the change.
596
Unless the will states otherwise, WHEN are gifts intended to take effect?
Immediately on death. This is important because it refers to the financial situation of the testator at that precise point.
597
If a will states 'a BMW car', what is the effect?
A BMW car will need to be purchased (if funds suffice)
598
If a will states 'my jewellery collection', what passes?
Everything in the jewellery collection at the precise time of death.
599
If a will states 'my car' does this mean whatever car was in the possession of the testator at time of death?
No, that means the car at the time of making the will. This is an exception to the general rule that property is considered at the precise time of death.
600
What is an ademption / to adeem?
The gift fails because the item is no longer available
601
If shares split and there are now twice as many as at the time of writing the will, how many are given?
All of them, depending on the wording, because it is at the time of death.
602
If shares in a company are replaced because a company bought out the company the shares belonged to, what is the effect of those shares?
Those will adeem as they are no longer the specific gift intended.
603
What is a pecuniary legacy?
A gift of cash
604
What is a demonstrative legacy?
Where the will states where the money comes from eg: the cash in my HSBC account.
605
The residuary is what remains of the estate, after what?
specific, general and pecuniary gifts are distributed
Admin costs and any debts are settled.
606
If the beneficiary of a gift dies before the testator, what happens to it?
It will lapse.
607
What is the difference between lapse and adeem?
Lapse is where the beneficiary died before the gift was given. Adeem is where the gift in the will is no longer in the testator's estate.
608
What is substitution?
Placing a name in the will to take an item / residuary if the first choice fails to survive the testator.
609
What happens to a gift if there is nobody to receive it?
It will fall into the residuary.
610
What happens to the residuary if the recipient has pre-deceased the testator?
It passes through the laws of intestacy. However, this will mean a grant of letters with will annexed, because a will existed, rather than a grant of letters.
611
What is the law of commorientes?
Where if two people die at the same time, the younger is deemed to have survived the elder.
612
What is special about gifts to issue of the testator?
They will automatically pass on to the next generation (in equal shares if more than one) if they pre-decease the testator.
613
If a class of beneficiaries is involved - all of whom have a contingent interest (for example upon the age of 21), upon which event will the class close?
The moment any member of the class satisfies the condition. The interests VESTS and is no longer contingent.
614
When a class closes, no new members can be added, but what happens to those who have not yet attained a vested interest (for example, a younger member of the class who still haven't reached age of 21)?
They will share the gift equally, contingent upon them reaching that age.
615
Under which conditions does intestacy arise?
Where there's no will
Where a residuary is missing, or fails
616
Under the rules of intestacy, there is a special rule involving spouses, what is it?
That under intestacy they must survive the deceased by 28 days in order to benefit. It is to save the PR having to administer the estate twice.
617
If a person dies intestate and their spouse dies a week later, who inherits?
The next in line of the first to die, rather than the next in line of the spouse.
618
Intestacy:
If a decedent is survived by a spouse AND issue, how is the estate distributed? (6)
Spouse takes all tangible moveable property (chattels)
£322k
Half the remaining property
Children split the rest, contingent upon reaching 18.
If child pre-deceases then own children can substitute
Surviving spouse can require the matrimonial home transferred to them in satisfaction of their share.
619
Intestacy:
If a decedent is survived by a spouse AND issue, how is the estate distributed? (6)
Spouse takes all ?????????????
£322k
Half the remaining property
Children split the rest, contingent upon reaching 18.
If child pre-deceases then own children can substitute
Surviving spouse can require the matrimonial home transferred to them in satisfaction of their share.
tangible moveable property (chattels)
620
Intestacy:
If a decedent is survived by a spouse AND issue, how is the estate distributed? (6)
Spouse takes all tangible moveable property (chattels)
£??????k
Half the remaining property
Children split the rest, contingent upon reaching 18.
If child pre-deceases then own children can substitute
Surviving spouse can require the matrimonial home transferred to them in satisfaction of their share.
£322k
621
Intestacy:
If a decedent is survived by a spouse AND issue, how is the estate distributed? (6)
Spouse takes all tangible moveable property (chattels)
£322k
??????? remaining property
Children split the rest, contingent upon reaching 18.
If child pre-deceases then own children can substitute
Surviving spouse can require the matrimonial home transferred to them in satisfaction of their share.
Half the remaining property
622
Intestacy:
If a decedent is survived by a spouse AND issue, how is the estate distributed? (6)
Spouse takes all tangible moveable property (chattels)
£322k
Half the remaining property
Children ??????????, contingent upon reaching 18.
If child pre-deceases then own children can substitute
Surviving spouse can require the matrimonial home transferred to them in satisfaction of their share.
split the rest (ie the other half)
623
Intestacy:
If a decedent is survived by a spouse AND issue, how is the estate distributed? (6)
Spouse takes all tangible moveable property (chattels)
£322k
Half the remaining property
Children split the rest, contingent upon reaching 18.
If child pre-deceases then ??????????????
Surviving spouse can require the matrimonial home transferred to them in satisfaction of their share.
own children can substitute
624
Intestacy:
If a decedent is survived by a spouse AND issue, how is the estate distributed? (6)
Spouse takes all tangible moveable property (chattels)
£322k
Half the remaining property
Children split the rest, contingent upon reaching 18.
If child pre-deceases then own children can substitute
Surviving spouse can require ?????????????
the matrimonial home transferred to them in satisfaction of their share.
625
Intestacy:
If there is no spouse, what is the priority of inheritance? (7)
Children
Parents
Full siblings
Half siblings
Grandparents
Uncles / Aunts
The crown
626
Intestacy:
Are adopted children and step children counted as children of the decedent?
Adopted children are, step children are not.
627
Intestacy:
If there is no spouse, what is the priority of inheritance?
?????????
Parents
Full siblings
Half siblings
Grandparents
Uncles / Aunts
The crown
Children
628
Intestacy:
If there is no spouse, what is the priority of inheritance?
Children
????????
Full siblings
Half siblings
Grandparents
Uncles / Aunts
The crown
Parents
629
Intestacy:
If there is no spouse, what is the priority of inheritance?
Children
Parents
Full siblings
?????????
Grandparents
Uncles / Aunts
The crown
Half siblings
630
Intestacy:
If there is no spouse, what is the priority of inheritance?
Children
Parents
Full siblings
Half siblings
??????????????
Uncles / Aunts
The crown
Grandparents
631
What is unique about joint tenancy, when someone dies intestate?
Survivorship still applies, meaning that any joint property will still go to the other joint tenant.
632
What happens to life assurances when distributing an estate?
They pass outside of the will or intestacy, and go to the person named in the policy.
633
How are national savings handled with regard to a will or intestacy?
Separately. The beneficiary will be named in the policy.
634
How are trust funds dealt with with regard to a will or intestacy?
Completely separately, and to a named person in the trust document.
635
What happens when a testator appoints their spouse as their executor but they subsequently divorce?
The appointment will be ineffective because they will be treated as if they had died (as far as the will is concerned).
636
What constitutes intermeddling?
Any dealing with property
Paying debts
Continuing the deceased's business
Anything that could alter the value of the estate
637
If someone has intermeddled, can they still renounce their role as executor?
No
638
What can an executor do, if they don't want to deal with the estate at this current time?
Have 'power reserved'
639
How must renunciations be recorded?
Notifying the probate registry.
640
Can an executor accept some parts of the role and not others?
No, it's an all or nothing position.
641
What is contentious probate?
Where there is a dispute as to whether the will is valid. NOT that someone is making a claim against a valid will.
642
How can a PR obtain £5k towards costs?
From national savings, premium bongs or building society, but this is at their discretion.
643
What does a PR need to sell chattels?
A death certificate
644
Is a grant of letters also known as a grant of probate?
No.
645
To where does a client apply for a grant of letters?
Probate registry.
646
What are the different types of Personal Representative? (2)
Executor - if there's a will
Administrator - if there's no will
647
At the time of death, where there is a valid will with executor(s) named, to whom does the deceased's property vest?
The executor(s)
648
How many executors can there be?
1-4
649
What happens if there are no surviving executors?
Then someone will need to apply for a grant of letters of administration with will annexed.
650
When does letters of administration with will annexed get used?
When there are no surviving executors
651
What type of grant is used when there is a partial intestacy?
Grant of letters with will annexed.
652
What will happen to the distribution of a will where there is a partial intestacy?
It will be via letters of administration with will annexed. The parts of the will which remain valid will be distributed in accordance with the will, and any remaining parts will be dealt with according to the rules of intestacy.
653
Who can apply for letters of administration with will annexed?
1. The beneficiaries of the residuary estate
2. Creditors of the deceased
3. The beneficiary of any other legacy
654
Who can apply for letters of administration with will annexed?
1. The ?????????????
2. Creditors of the deceased
3. The beneficiary of any other legacy
beneficiaries of the residuary estate
655
Who can apply for letters of administration with will annexed?
1. The beneficiaries of the residuary estate
2. ???????????? of the deceased
3. The beneficiary of any other legacy
Creditors
656
Who can apply for letters of administration with will annexed?
1. The beneficiaries of the residuary estate
2. Creditors of the deceased
3. The beneficiary ????????????
of any other legacy
657
What is the difference between prescription and adverse possession?
Prescription is relevant as to a right over the property and can be gained after 20 years with no challenge, secrecy or permission.
Adverse possession is to do with the ownership of the land, requiring 12 years (unregistered) or 10 years (registered).
658
What happens if the sole or last surviving PR dies before administration is completed?
A grant de bonis non (second grant of letters) will be made using the preferential list (beneficiaries, creditors, legacy beneficiary)
659
What happens if the sole or last surviving PR dies before administration is completed, but they have left an executor of their own?
Then that executor will take over, in a chain representation situation.
660
Can a minor be named as a PR?
Only if they're one of several PR's. Their parents serve, with power reserved until the minor is 18.
661
What must be paid before any grant of probate can be made?
Inheritance tax.
662
How can a potential PR pay inheritance tax before receiving a grant?
They can request funds are released from a deceaseds bank account to go directly to HMRC. This would count as inter-meddling.
663
How can a potential PR pay funeral expenses?
They can request a release of the deceased's bank funds.
664
Other than the release of funds from banks, how else can PRs raise funds to pay IHT?
Loans from beneficiaries
Sell estate assets by providing death certificate.
665
What paperwork is required to submit a grant for probate? (4)
Copy of will (x2)
Any codicils
Affidavits / statement of truth
Court fee.
666
What paperwork is required to submit a grant for probate? (4)
????????? (x2)
Any codicils
Affidavits / statement of truth
Court fee.
Copy of will
667
What paperwork is required to submit a grant for probate? (4)
Copy of will (x2)
Any ??????????
Affidavits / statement of truth
Court fee.
codicils
668
What paperwork is required to submit a grant for probate? (4)
Copy of will (x2)
Any codicils
Affidavits / statement of truth
Court ??????
fee.
669
What paperwork is required to submit a grant for probate? (4)
Copy of will (x2)
Any codicils
???????? / statement of truth
Court fee.
Affidavits
670
What paperwork is required for a grant of letters of administration? (4)
Application form
Will
Any codicils
Proof of identity
671
What paperwork is required for a grant of letters of administration? (4)
?????????? form
Will
Any codicils
Proof of identity
Application
672
What paperwork is required for a grant of letters of administration? (4)
Application form
??????
Any codicils
Proof of identity
Will
673
What paperwork is required for a grant of letters of administration? (4)
Application form
Will
Any ??????
Proof of identity
codicils
674
What paperwork is required for a grant of letters of administration? (4)
Application form
Will
Any codicils
Proof of ????????
identity
675
What must be sought if a will contains no attestation clause?
Affidavit of execution or statement of truth, from a witness, OR, someone else present (as a backup).
676
What is required if a will contains apparently unexecuted obliterations or changes?
An affidavit or statement of truth.
677
What should a beneficiary do if they suspect a lack of capacity
Lodge a caveat at the probate registry.
678
What is the effect of a caveat being lodged on the administration of a will?
It puts it on hold for up to 6 months. If unresolved in that time then a court application becomes necessary.
679
What needs to happen if someone with a prior right to administer a will isn't doing so?
Ask the probate registry to issue a citation to accept or refuse a grant.
680
Within how long must the IHT paperwork be filed with HMRC after the deceased's death?
12 months.
681
Within how long does interest begin to accumulate on the death estate?
6 months
682
What happens where co-owned land is left in a will?
The difficulty in selling land that is co-owned is taken in to account when being sold (discounted) unless the co-owner was the spouse.
683
A death estate of a UK domiciliary is exempt from IHT if it is below which amount?
£325k.
684
If someone dies whilst living abroad, how much of their estate consisting solely of cash and shares is exempt from IHT?
£150k.
685
How is IHT calculated on a jointly owned property when a spouse dies?
By a notional half share.
686
What is the test for the level of care and skill a PR must take when dealing with an estate?
They must exercise reasonable care and skill, taking into account any specialist knowledge they have.
687
In who's best interest must the PR act?
The beneficiaries.
688
Who is responsible for losses made for the estate resulting from a PR's breach of duty?
The PR
689
To what extent are PRs liable for another PR's breach of duty?
They're not, unless they were negligent in preventing the breach.
690
What should the PRs do with regard to choice of investments?
Take investment advice.
691
Can a PR mortgage or lease property?
Yes
692
Can a PR appropriate (use an estate asset to satisfy a legacy)?
Yes, if the beneficiary consents.
693
What expenses can a PR take for administering the estate?
They can indemnify themselves for expenses they properly incur.
694
May a PR carry on the deceased's sole business?
Only if provided for in the will, otherwise no.
695
What type of investments are suitable when managing a trust fund?
Those suitable for the trust, and diversified.
696
What happens if a PR does not diversify their investments with a trust fund?
They can be found liable.
697
If an estate includes a gift to a minor to receive income, what can the beneficiary ask for it to be used for in addition?
Their maintenance, education or benefit, at the trustee's decision.
698
What happens to interest earned in a trust fund when a beneficiary turns 18?
The interest at that point is added to the capital.
699
What happens to a trust fund's interest if a beneficiary's interest doesn't vest until later than 18?
It can be paid to them until they reach the contingent age.
700
Does a beneficiary have to have a vested interest in a trust fund in order to have funds advanced?
No, it can be vested or contingent.
701
If someone has an interest in a trust fund but someone else has a life interest, can funds be advanced?
Only if the person with the life interest consents.
702
What happens with regard to valid receipt for land, where there is only one PR?
One can give a valid receipt. It's just that where there are more they all must join for it. Same with shares.
703
Are PR's liable to unknown creditors as well as know?
Yes, unless complying with s27 Trustee Act 1925.
704
What are the key points of s27 Trustee Act 1925?
Placing a notice in the London Gazette and a local newspaper when intending to distribute property.
705
How long does a PR need to wait after posting a notice in the London Gazette and local newspaper, before distributing the property, in order to be protected from liability?
2 months.
706
Where a PR is aware of potential known claims, what actions do they have to protect themselves? (4)
Make payment into court and distribute the rest
Gain indemnity from beneficiaries
Seek a Benjamin order
Purchase insurance against risk of missing claimant appearing.
707
Where a PR is aware of potential known claims, what actions do they have to protect themselves? (4)
Make ???????????? and distribute the rest
Gain indemnity from beneficiaries
Seek a Benjamin order
Purchase insurance against risk of missing claimant appearing.
payment into court
708
Where a PR is aware of potential known claims, what actions do they have to protect themselves? (4)
Make payment into court and distribute the rest
Gain ??????????? from beneficiaries
Seek a Benjamin order
Purchase insurance against risk of missing claimant appearing.
indemnity
709
Where a PR is aware of potential known claims, what actions do they have to protect themselves? (4)
Make payment into court and distribute the rest
Gain indemnity from beneficiaries
Seek a ???????? order
Purchase insurance against risk of missing claimant appearing.
Benjamin
710
Where a PR is aware of potential known claims, what actions do they have to protect themselves? (4)
Make payment into court and distribute the rest
Gain indemnity from beneficiaries
Seek a Benjamin order
????????????? against risk of missing claimant appearing.
Purchase insurance
711
What is a Benjamin order?
Court order - It provides protection to the personal representatives from liability if the missing beneficiary later appears.
712
What is the effect of a Benjamin order on the potential beneficiary?
They are treated as if they had died.
713
Under which circumstances can a PR sell an item specified as a legacy?
Where the creditors demands are more than the death estate, as they will need to be paid first.
714
Which funds should be used to pay off unsecured creditors?
Any property undisposed of by the will, and then out of the residue (if any remaining).
715
What order of property should be used in the event that a will specifies debts should not be paid off by the residue?
Any property specifically identified as to be sold to pay debts
Pecuniary legacies (abating proportionately if some left)
Any other property's value, abating proportionately.
716
If a will states that a property is to be given free of mortgage, how will the mortgage be paid?
From the residue.
717
What is the priority for debts when an estate has insufficient funds to clear all of it's debt? (5)
Reasonable funeral & admin expenses
Preferred debts
Ordinary debts
Interest
Deferred debts
718
What is the priority order for debts when an estate has insufficient funds to clear all of it's debt?
Reasonable ???????????
Preferred debts
Ordinary debts
Interest
Deferred debts
funeral & admin expenses
719
What is the priority order for debts when an estate has insufficient funds to clear all of it's debt?
Reasonable funeral & admin expenses
???????????? debts
Ordinary debts
Interest
Deferred debts
Preferred - wages of deceased's employees in 4 months prior to death (max £800); HMRC.
720
What is the priority order for debts when an estate has insufficient funds to clear all of it's debt?
Reasonable funeral & admin expenses
Preferred debts
??????????? debts
Interest
Deferred debts
Ordinary (unsecured creditors)
721
What is the priority order for debts when an estate has insufficient funds to clear all of it's debt?
Reasonable funeral & admin expenses
Preferred debts
Ordinary debts
??????????
Deferred debts
Interest (on debts)
722
What is the priority order for debts when an estate has insufficient funds to clear all of it's debt?
Reasonable funeral & admin expenses
Preferred debts
Ordinary debts
Interest
????????? debts
Deferred debts - loans from the deceased's spouse
723
What are preferred debts?
Wages of the deceased's employees in the 4 months prior to their death & HMRC
724
What is the maximum amount that can be paid to an employee for preferred debts when administering an estate?
£800
725
What counts as 'ordinary' debts for the purposes of administration of an estate?
Unsecured debts, other than preferred debts (for employees)
726
What are deferred debts, for the purposes of administering an estate?
Debts belonging to the deceased's spouse.
727
What are the possible consequence of a PR paying a lower category of debt when there are higher ranking debts that can't be paid as a result?
They can be found personally liable.
728
What must a named beneficiary do to avoid paying IHT and CGT which would be owed to them had they accepted the gift?
They must disclaim the inheritance, in writing.
729
What happens to the item if a specific legacy is disclaimed?
It falls in to the residue.
730
What happens if the beneficiary disclaims the residue?
The residue passes via the intestacy rules.
731
If a specific gift is disclaimed, can it still be accepted under the intestacy rules?
Yes.
732
Within how long must a variation for a gift be made?
2 years. Any such variation cannot be for monetary consideration.
733
What happens if a variation of gift isn't executed according to the rules set out?
Then the item is subject to IHT / a deemed disposal for CGT by the original beneficiary.
734
What is the legal effect of a successful variation of gift?
It is as if the deceased had left the property to the new beneficiary.
735
What are the two ways to decline a gift / part of a gift in a will?
Disclaim or variation
736
Wills - Gifts - Receipts.
What must a PR obtain in exchange for the gift?
A valid receipt.
737
Wills - Gifts - Receipts.
What must a PR obtain in exchange for delivery of a chattel?
A receipt
738
Wills - Gifts - Receipts.
What must a PR obtain in exchange for delivery of a gift of shares? (3)
Stock transfer form
Office copy of the grant
Share certificate
739
Wills - Gifts - Receipts.
What must a PR obtain in exchange for delivery of a gift of shares?
?????????? form
Office copy of the grant
Share certificate
Stock transfer
740
Wills - Gifts - Receipts.
What must a PR obtain in exchange for delivery of a gift of shares?
Stock transfer form
Office copy of ???????
Share certificate
the grant
741
Wills - Gifts - Receipts.
What must a PR obtain in exchange for delivery of a gift of shares?
Stock transfer form
Office copy of the grant
???????? certificate
Share
742
Wills - Gifts - Receipts.
What must a PR obtain in exchange for a gift of land?
Assent in writing
Beneficiary to register their interest at HMLR
743
Wills - Gift
Who bears the cost of the transfer?
The beneficiary
744
Who is entitled to any income arising from property earned between the deceased's death and the time of the gift?
The beneficiary
745
Where are pecuniary gifts normally paid from?
The residue, unless the will specifies otherwise.
746
If no source for a pecuniary gift is stated in a will, and the estate has insufficient money, whereabouts in the priority list will the beneficiary of the gift be?
An ordinary / unsecured creditor.
747
What happens to multiple legacies where there isn't enough money in the estate
They will all abate proportionately
748
What is appropriation, when dealing with the administration of an estate?
The beneficiary asking the PR to use a particular asset to satisfy a pecuniary legacy.
749
What happens when there is a gift to a minor - and the minor can't therefore give a valid receipt?
The receipt is given by the minor's parents, to be held on trust until the minor turns 18, or simply not given at all.
750
In what circumstances may PRs charge for acting?
By agreement of all PRs, or if acting in a professional capacity.
751
What must PR's make in order to show the residuary beneficiaries what is available?
Estate accounts.
752
What must Beneficiaries do upon receiving estate accounts from the PRs?
Approve the accounts and indemnify the PRs.
753
What happens if the beneficiaries refuse to approve the accounts made by the PRs?
The PR can ask the court to approve, or can pay the beneficiaries share into the court.
754
At what triggering event does an assent take effect?
Immediately upon the testator's death, so is treated as being owned by the beneficiary from that point.
755
What requirements are there for an assent of land? (4)
Must be in writing
Signed by PRs
Name of the beneficiary.
HMLR must be notified.
756
What requirements are there for an assent of land?
Must be ???????
Signed by PRs
Name of the beneficiary.
HMLR must be notified.
in writing
757
What requirements are there for an assent of land?
Must be in writing
Signed by ?????????
Name of the beneficiary.
HMLR must be notified.
PRs
758
What requirements are there for an assent of land?
Must be in writing
Signed by PRs
Name of ???????????
HMLR must be notified.
the beneficiary.
759
What requirements are there for an assent of land?
Must be in writing
Signed by PRs
Name of the beneficiary.
??????? must be notified.
HMLR
760
What rights to beneficiaries have in the estate whilst it is being administered?
Only that they have the right to have the estate administered properly.
761
If beneficiaries bring an action against PRs, what is the test to decide whether or not the PR is liable?
They are not liable if they acted honestly, reasonably and ought fairly to be excused.
762
They are not liable if they acted honestly, reasonably and ought fairly to be excused.
What is this the test for?
That a PR is not liable for the action in question.
763
What type of accounts are expected to be produced by PRs in relation to the estate? (3)
Income account
Capital account
Distribution account
764
What is the act that sets out the possible claims by people who felt that reasonable provision has not been made for them in a will?
Inheritance (provision for family and dependants act) 1975.
765
What is the main provision of Inheritance (provision for family and dependants act) 1975?
That the terms of will can be set aside or varied, because reasonable financial provision has not been made for them
766
Within how long should a claim under Inheritance (provision for family and dependants act) 1975 be made?
Within 6 months of issue of grant to PRs (though this can be later, with leave of the court).
767
Why should PRs wait 6 months before distributing an estate?
Because at that point there is no longer any possibility of an application under Inheritance (provision for family and dependants act) 1975.
768
Who can bring a claim under Inheritance (provision for family and dependants act) 1975?
Spouse or civil partner
Ex spouse, not remarried
Child, or person treated as a child
Person maintained by the deceased
Person who cohabited with deceased for 2+ years prior to death
769
Under what conditions are any adult children unlikely to be successful in an application under Inheritance (provision for family and dependants act) 1975?
If they are able bodied and in employment.
770
What is the test the courts will use for a claim under the Inheritance (provision for family and dependants act) 1975?
1. Has the will or intestacy rules failed to make REASONABLE financial provision for the applicant
2. If so – what would be the provision?
a. For spouse – As would be reasonable in ALL THE CIRCUMSTANCES whether or not required for maintenance.
b. For ALL OTHERS – financial need to live comfortably (OBJECTIVE test).
c. Reasons deceased gave for not providing.
771
What is the test the courts will use for a claim under the Inheritance (provision for family and dependants act) 1975? (5 points)
1. Has the will or intestacy rules failed to make ???????????????? for the applicant
2. If so – what would be the provision?
a. For spouse – As would be reasonable in ALL THE CIRCUMSTANCES whether or not required for maintenance.
b. For ALL OTHERS – financial need to live comfortably (OBJECTIVE test).
c. Reasons deceased gave for not providing.
REASONABLE financial provision
772
What is the test the courts will use for a claim under the Inheritance (provision for family and dependants act) 1975? (5 points)
1. Has the will or intestacy rules failed to make REASONABLE financial provision for the applicant
2. If so – ????????????????????
a. For spouse – As would be reasonable in ALL THE CIRCUMSTANCES whether or not required for maintenance.
b. For ALL OTHERS – financial need to live comfortably (OBJECTIVE test).
c. Reasons deceased gave for not providing.
what would be the provision?
773
What is the test the courts will use for a claim under the Inheritance (provision for family and dependants act) 1975? (5 points)
1. Has the will or intestacy rules failed to make REASONABLE financial provision for the applicant
2. If so – what would be the provision?
a. For spouse – ?????????????? whether or not required for maintenance.
b. For ALL OTHERS – financial need to live comfortably (OBJECTIVE test).
c. Reasons deceased gave for not providing.
As would be reasonable in ALL THE CIRCUMSTANCES
774
What is the test the courts will use for a claim under the Inheritance (provision for family and dependants act) 1975? (5 points)
1. Has the will or intestacy rules failed to make REASONABLE financial provision for the applicant
2. If so – what would be the provision?
a. For spouse – As would be reasonable in ALL THE CIRCUMSTANCES whether or not required for maintenance.
b. For ALL OTHERS – ???????????? (OBJECTIVE test).
c. Reasons deceased gave for not providing.
financial need to live comfortably
775
What is the test the courts will use for a claim under the Inheritance (provision for family and dependants act) 1975? (5 points)
1. Has the will or intestacy rules failed to make REASONABLE financial provision for the applicant
2. If so – what would be the provision?
a. For spouse – As would be reasonable in ALL THE CIRCUMSTANCES whether or not required for maintenance.
b. For ALL OTHERS – financial need to live comfortably (OBJECTIVE test).
c. Reasons deceased gave ????????????
for not providing.
776
What factors are considered by the court in deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4)
Person's need
Moral considerations
Disabilities
Age and duration of relationships
777
What orders are available to the court when deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4)
Transfer of property
Lump sum (most common)
Payment of income
Settlement of property on trust
778
What factors are considered by the court in deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4)
Person's ??????
Moral considerations
Disabilities
Age and duration of relationships
need
779
What factors are considered by the court in deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4)
Person's need
???????? considerations
Disabilities
Age and duration of relationships
Moral
780
What factors are considered by the court in deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4)
Person's need
Moral considerations
???????
Age and duration of relationships
Disabilities
781
What factors are considered by the court in deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4)
Person's need
Moral considerations
Disabilities
?????????????? relationships
Age and duration of
782
What orders are available to the court when deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4)
???????????? property
Lump sum (most common)
Payment of income
Settlement of property on trust
Transfer of
783
What orders are available to the court when deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4)
Transfer of property
??????????/ (most common)
Payment of income
Settlement of property on trust
Lump sum
784
What orders are available to the court when deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4)
Transfer of property
Lump sum (most common)
Payment of ?????????
Settlement of property on trust
income
785
What orders are available to the court when deciding what provision to make under the Inheritance (provision for family and dependants act) 1975? (4)
Transfer of property
Lump sum (most common)
Payment of income
???????????? on trust
Settlement of property
786
What are Potentially Exempt Transfers (PET)?
Lifetime transfers that are not immediately chargeable unless exceed current IHT nil rate band, and within 7 years of death
787
To what extent does IHT apply to those not domiciled in the UK?
Only to UK assets
788
Transfers made without any ___________ are disregarded for IHT?
Gratuitous intent
789
What is it about stocks that mean their value can fluctuate?
The fact that they may alter the percentage ownership conferred. The greater the ownership stake, the higher the value.
790
What is the related property rule?
Where property is more valuable when a spouse’s property is joined to it (ie a collection) - the higher value is used.
791
What four category of gifts are exempt from IHT?
Gifts to spouse (unless domiciled outside of UK)
Gifts to charities
£250 or less to anyone
Weddings (up to a certain limit)
792
If a spouse is domiciled outside of the UK, can they be sent gifts free of IHT?
No. It would use some of the personal allowance of £325k.
793
What are the wedding gifts limits that would be free of IHT?
Parent - up to £5k
Grandparent - up to £2.5k
Spouse to spouse - up to £2.5k
All others £1k.
794
What are the wedding gifts limits that would be free of IHT?
Parent - up to ??????
Grandparent - up to £2.5k
Spouse to spouse - up to £2.5k
All others £1k.
£5k
795
What are the wedding gifts limits that would be free of IHT?
Parent - up to £5k
Grandparent - up to??????
Spouse to spouse - up to £2.5k
All others £1k.
£2.5k
796
What are the wedding gifts limits that would be free of IHT?
Parent - up to £5k
Grandparent - up to £2.5k
Spouse to spouse - up to ?????
All others £1k.
£2.5k
797
What are the wedding gifts limits that would be free of IHT?
Parent - up to £5k
Grandparent - up to £2.5k
Spouse to spouse - up to £2.5k
All others ?????
£1k
798
Is a gift of £275 to a non related person, not at a wedding, subject to IHT?
Yes, the whole of this would be subject to IHT. If it was £250 none of it would. The £250 limit is all or nothing.
799
If a family member gave a gift of more than their IHT free amount (eg £6k from parents where the limit is £5k) would the whole of the £6k be subject to IHT?
No, only £1k of it would. Wedding gifts, unlike non wedding gifts are NOT all or nothing gifts.
800
What is the annual amount exempt from IHT that each person has?
£3k.
801
How long can each person's annual exempt amount from IHT carry over?
By one year, to a total of 2 (£6k).
802
When is IHT payable for lifetime transfers (Chargeable lifetime transfers - CLT)?
At the time of the gift.
803
What type of transfer is a gift to a trust or company?
Chargeable lifetime transfers (CLT)
804
What exemption would typically be used in relation to a chargeable lifetime transfer
Annual exempt amount (£3k per year).
805
How is the IHT payable calculated when an annual exemption is used against a chargeable lifetime transfer? Let's say the CLT is for £10k.
It's £7k gross, then 40% of this, so the IHT payable would be £2800.
This is because the annual exempt amount is taken off the gross amount first (similar to child maintenance).
However, the personal nil rate band will mean that most people still won't have to pay anything.
806
How is the IHT payable calculated when an annual exemption is used against a chargeable lifetime transfer? Let's say the CLT is for £100k, but the person making the transfer has the maximum available annual exemptions x2 (£6k)?
Take the £6k from the £100k, leaving £94k. 40% of £94k is £37,600 which would be how much IHT is payable.
However, the personal nil rate band will mean that most people still won't have to pay anything.
807
If someone exceeds their Nil Rate Band (NRB) whilst alive, at what rate is inheritance tax paid?
20% - this is known as the lifetime rate.
808
Who pays any IHT due on a chargeable lifetime transfer, and at what amount?
Either the transferor (at 25%) or the transferee (at 20%)
809
What happens if someone dies within 7 years of making a CLT (note - not a PET)?
If an individual dies within 7 years of making a CLT, it will be brought into the IHT calculation and tax will be recalculated at the full rate.
This is because they would have paid at the lifetime rate of 20%, rather than the death rate of 40%.
810
What is business relief?
Where if sole trade or partnership or transferring share in unlisted trading company, a rate of 100% exemption applies.
811
Which type of businesses attract a 100% exemption for IHT?
Sole trade or partnership or transferring share in unlisted trading company.
812
Which types of businesses attract of 50% exemption for IHT?
Shares transferred in a quoted trading company if the donor has more than 50% of the voting shares.
-or-
Donor transfers land, buildings, plant or machinery used by a partnership or company.
813
What are the conditions for Agricultural relief to apply?
100% (for now anyway) provided the land has been owned for the last 2 years, or rented for 7.
814
What happens to the annual exempt amount for IHT upon death?
It is no longer available at all. Instead, the NRB is reduced by the amount of PETs and CLTs made within the last 7 years.
815
What must be taken into account from the 7 years prior to death in terms of IHT?
PETs and CLTs
816
Is the IHT payable when transferring a home from spouse to spouse?
No, because there is no IHT chargeable at all on this. No NRB is used either.
817
Is IHT payable if you give your house to your children?
Yes, after any NRB has been used.
818
If more than 10% of the 'baseline' for IHT is given to charity, you get a reduced rate, but what is the baseline?
The baseline is what remains after deducting all reliefs, exemptions and NRB. So in other words, the amount that is about to be taxed for IHT.
819
What reduction is given for giving more than 10% of the baseline away to charity?
The rate reduces from 40% to 36%
820
Estates over what size suffer tapering to the residence NRB?
£2M.
821
What is the residence NRB?
£175k.
822
How does tapering work to estate over £2M?
For each £2 over the £2M limit, £1 is reduced from the Residence NRB (note - not the personal NRB).
823
If an estate is worth £2.5M, involving property, how much IHT would be paid (assume here that there's no personal NRB in play)?
£1M.
There would be no residence NRB left, because at £2,350,000 tapering would have eradicated the NRB by £1 for each £2 over.
824
What is the down-sizing add on?
It's an extra bit of NRB for those who downsized their homes during life.
The downsizing addition is normally the same as the RNRB lost when the former home was removed from the estate.
825
What is quick succession relief?
It means where the person who inherited dies within 5 after the inheritance, less IHT is due.
It tapers by 20% for each year survived.
826
How much quick succession relief would there be for someone who inherited and died between 1 and 2 years later?
80% relief
827
How much quick succession relief would there be for someone who inherited and died between 4 and 5 years later?
20% relief
828
Gifts with reservation of benefit are easy to spot, but if found are they counted as CLTs or PETs?
PETs.
829
When is IHT payable?
6 months from the end of the month deceased.
830
From which fund is IHT paid?
The residue, unless the will states otherwise.
831
Who is responsible for paying the PET, where a property has found to have attracted reservation of benefit?
The person being 'given' the property.
832
Income tax
Which period of the year preceding death must the PR prepare accounts for?
The financial year, so from 6th April to date of death, and pay the income tax due.
833
Income tax
By when must PRs file the tax return for the deceased?
31st Jan, as normal.
834
Income tax
Instead of filing self assessments, what do the PRs file for the deceaseds final year?
Income tax calculation
CGT calculation
A single total liability figure
835
What rate are non savings income, and interest taxed at?
20%
836
What rate are dividends taxed at?
8.75% and there are no tax free allowances anymore.
837
If the PR takes out a loan to pay IHT, is the interest deductible against income of the estate?
Yes.
838
What is probate value?
Market value at time of death.
839
What annual exemptions do PRs have against CGT?
£3k per year, for the first three years. None after.
840
Can excess losses of an estate be offset against gains of a future year?
Yes.
841
What are the rates of CGT for gains made by PRs?
20% general gains
28% residential gains
842
Do gifts made by PRs to beneficiaries attract CGT?
No.
843
What is the difference between express trusts and implied trusts?
An express trust is clearly expressed with the intention to create a trust. An implied trust is where there has been actions that could be construed as intended.
844
What type of trust has been established where a friend contributes money towards the purchase of a house?
The named owner will hold the property on trust for both. This is a resulting trust - a type of implied trust.
845
What is a discretionary trust?
Where the trustee is given discretion as to how the trust fund is used.
846
What is a constructive trust?
One that arises to protect an innocent party from an unjust enrichment (by another).
847
What are the requirements to show intention to create a trust? (3)
Must be at the time of owning the property
Must intent to be effective immediately
Can be by words OR conduct.
848
What is the effect on a trust of the words 'hope' or 'wish'?
It is invalid.
849
What is the additional requirement for creation of a trust if it arises through actions only?
Must be a witness.
850
What happens when creating a trust if certainty of intention cannot be proved?
The item stays with the trustee rather than the person it's held for.
851
What are the three certainties that are key requirements for making a trust?
Intention to create the trust
Certainty of subject matter
Objects (beneficiaries) must be certain.
852
Trusts - certainty of subject matter.
How will 'the bulk of my estate' be treated?
It will fail for uncertainty.
853
Trusts - certainty of subject matter.
How will shares, stock and money be treated to ensure certainty?
Shares - easily divided - no problem
Stock - must have been separated from other stock to be certain
Money - must be sufficiently clear to be valid.
854
Trusts - certainty of subject matter.
Can the right to inherit be made subject to a trust?
No. Expectancies cannot be made subject to a trust.
855
Trusts - objects must be certain
Is 'my children' valid?
Yes.
856
Trusts - objects must be certain
Is 'my friends' valid?
No, too uncertain.
857
What are the three certainties that are key requirements for making a trust?
Intention to ?????????
Certainty of subject matter
Objects (beneficiaries) must be certain.
create the trust
858
What are the three certainties that are key requirements for making a trust?
Intention to create the trust
Certainty of ?????????
Objects (beneficiaries) must be certain.
subject matter
859
What are the three certainties that are key requirements for making a trust?
Intention to create the trust
Certainty of subject matter
Objects (beneficiaries) must be ?????????
certain.
860
Trusts - objects must be certain
Is 'my former employees' valid?
Might be, if traceable.
861
If not all of the class of objects in a trust can't be found, does this make the trust invalid?
No, not finding them doesn't make it invalid, but they must all be known.
862
If the three certainties for making a trust are not present, what happens to the trust property?
The trust is not valid, so any property would remain with the settlor.
863
Trusts - who is the settlor?
The person making the trust.
864
Trusts - what is the name of the person making a trust?
The settlor.
865
Discretionary trusts.
What is the Given Postulant test?
Must be able to say with certainty whether or not an individual is a member of a given class.
However, a full list of beneficiaries is NOT required for a discretionary trust.
866
Discretionary trusts.
If a class is too large - ie the entire inhabitants of a town, is the trust valid?
No it will fail. A resulting trust arises whereby the property goes BACK to the settlor (original owner), or their successors if not.
867
Trusts - Mortis Causa (reason of death)
What is this?
This is somebody making a trust on their deathbed.
868
Trusts - Mortis Causa
What is the test for this?
Donor delivers property whilst in contemplation of imminent death
It is conditional upon death
They die
869
Trusts - Mortis Causa
What is the effect on validity if the donor had no reason to believe they were about to die, but died anyway?
It will fail, because they must believe they are going to die imminently.
870
Trusts - Mortis Causa
Is going on a flight enough to satisfy the test?
No, because there's no reason to contemplate imminent death.
871
Trusts
What is the beneficiary principle?
That a trust must have ascertainable human beneficiaries.
872
What is a testsamentary trust?
One made within a will
873
What three certainties are required for a testamentary trust?
The same as other trusts:
1. Intention to create a will
2. Certainty to subject
3. Certainty to objects
874
What is the perpetuity rule?
That the trust must be planned to exist beyond a certain time limit.
That is, a 'life in being' plus 21 years.
It is to stop property being tied up indefinitely.
875
When do the perpetuity rules apply to a trust?
When it is made within the settlor's lifetime, for interests that have not yet vested.
876
How does a fully secret trust work? (4)
Gift to trustee in will
Secret purpose not disclosed
Trustee can be notified of purpose at any time
Acceptance by trustee is implied unless expressly rejected
877
How does a fully secret trust work? (4)
????????? in will
Secret purpose not disclosed
Trustee can be notified of purpose at any time
Acceptance by trustee is implied unless expressly rejected
Gift to trustee
878
How does a fully secret trust work? (4)
Gift to trustee in will
???????? not disclosed
Trustee can be notified of purpose at any time
Acceptance by trustee is implied unless expressly rejected
Secret purpose
879
How does a fully secret trust work? (4)
Gift to trustee in will
Secret purpose not disclosed
Trustee can be notified of purpose ??????
Acceptance by trustee is implied unless expressly rejected
at any time
880
How does a fully secret trust work? (4)
Gift to trustee in will
Secret purpose not disclosed
Trustee can be notified of purpose at any time
Acceptance by trustee is ??????????
implied unless expressly rejected
881
Fully secret trust - will a beneficiary be aware?
Usually, yes.
882
What must the beneficiary show to take from a fully secret trust?
The terms of the trust, with clear and convincing evidence.
883
What happens to a fully secret trust if the trustee fails to accept it, or did not know about it until after the settlor's death?
It fails, and the trustee can keep the gift.
884
What is a half secret trust? (4)
Partially revealed by will
Gift to trustee for purposes I have made known to them
Identity of beneficiary must be provided to the trustee on or before execution of the will
Will cannot refer to future communication
885
What is the difference between the timing of telling the trustee the purpose of the trust, between secret and half secret trusts?
Fully secret - trustee can be told at any time
Half secret - trustee must be told at, or prior to execution of the will
886
What is the difference between what happens to the gift if there is a failure of the trust in secret and half secret trusts?
In secret trusts the trustee keeps the gift
In half secret trusts the gift returns to the settlor.
This is because of the timing of when the trustee must be informed of the trust. In half secret trusts the trustee must be informed before execution of the will, therefore the settlor is still able to provide the gift elsewhere, unlike in a fully secret trust where the trustee can be told at any point.
887
What is a half secret trust? (4)
???????? revealed by will
Gift to trustee for purposes I have made known to them
Identity of beneficiary must be provided to the trustee on or before execution of the will
Will cannot refer to future communication
Partially
888
What is a half secret trust? (4)
Partially revealed by will
Gift to trustee for ??????????????? [wording]
Identity of beneficiary must be provided to the trustee on or before execution of the will
Will cannot refer to future communication
purposes I have made known to them
889
What is a half secret trust? (4)
Partially revealed by will
Gift to trustee for purposes I have made known to them
Identity of beneficiary must be provided to the trustee ????????????
Will cannot refer to future communication
on or before execution of the will
890
What is a half secret trust? (4)
Partially revealed by will
Gift to trustee for purposes I have made known to them
Identity of beneficiary must be provided to the trustee on or before execution of the will
Will cannot refer to ????????????
future communication
891
Trusts: What is the rule in Saunders v Vaultier?
Beneficiaries can terminate a trust if all the conditions are met:
All beneficiaries have absolute interest
All are in agreement
All are adults and of sound mind
892
What constitutes an absolute interest in a trust?
A full and vested interest in both the income and the cpital.
893
Trusts: What is the rule in Saunders v Vaultier?
Beneficiaries can terminate a trust if all the conditions are met:
All beneficiaries have ????????? interest
All are in agreement
All are adults and of sound mind
absolute
894
Trusts: What is the rule in Saunders v Vaultier?
Beneficiaries can terminate a trust if all the conditions are met:
All beneficiaries have absolute interest
All are in ????????
All are adults and of sound mind
agreement
895
Trusts: What is the rule in Saunders v Vaultier?
Beneficiaries can terminate a trust if all the conditions are met:
All beneficiaries have absolute interest
All are in agreement
All are ???? and of ??????????
adults and of sound mind
896
What is a resulting trust?
Where equity steps in to a situation. Normally where there was no intention to create a trust.
897
What is the difference between a resulting and a constructive trust?
A resulting trust arises when property is transferred, but the transferee is not intended to be the beneficial owner, while a constructive trust is imposed by law where it would be unconscionable for the legal owner to deny another's beneficial interest.
898
Where purchase money for a property has been given to the buyer, what would be the consequences with regard to a resulting trust?
Equity presumes this was not an intended GIFT, and house is held on resulting trust.
899
Who has the burden of proving that a resulting trust was created?
The person seeking an increased share.
900
When providing purchase money to a buyer, is a resulting trust presumed?
Yes.
901
What is the old-fashioned presumption of advancement?
Where the presumption of a resulting trust (for property purchase) is negated by it being:-
Husband / fiance to wife / fiancee
Father to a child (not mother)
Person in loco parentis (this can include a mother, where they are a single parent).
902
Trusts: How is the presumption of advancement challenged?
It can be rebutted where the person can show it was not intended as a gift.
This can be shown through:-
Financial dealings
Acts or declarations made before or at the time of the transfer or purchase
Illegality
903
Trusts: How is the presumption of advancement challenged?
It can be rebutted where the person can show it was not intended as a gift.
This can be shown through:- (3)
??????????? dealings
Acts or declarations made before the transfer or purchase
Illegality
Financial
904
Trusts: How is the presumption of advancement challenged?
It can be rebutted where the person can show it was not intended as a gift.
This can be shown through:- (3)
Financial dealings
??????????? made before the transfer or purchase
Illegality
Acts or declarations
905
Trusts: How is the presumption of advancement challenged?
It can be rebutted where the person can show it was not intended as a gift.
This can be shown through:- (3)
Financial dealings
Acts or declarations made before the transfer or purchase
??????
Illegality
906
What is the general rule in TOLATA if there is no declaration of trust?
Equity follows the law, so sole name = 100%/0%, joint names = 50%/50%.
907
If the parties to a property are unmarried, and pay unequal amounts to the purchase price, but have a declaration of trust saying it's equal, which prevails?
The declaration of trust as it is conclusive.
908
If there is no declaration of trust with regard to a property purchase, under what grounds can the person seeking a greater share use to rebut the presumption where equity followed the law? (4)
Purpose the property was purchased for
Nature of parties relationship
Way the finances were managed
Way that the parties paid the bills (eg 80/20 split).
909
If there is no declaration of trust with regard to a property purchase, under what grounds can the person seeking a greater share use to rebut the presumption where equity followed the law? (4)
??????? the property was purchased for
Nature of parties relationship
Way the finances were managed
Way that the parties paid the bills (eg 80/20 split).
Purpose
910
If there is no declaration of trust with regard to a property purchase, under what grounds can the person seeking a greater share use to rebut the presumption where equity followed the law? (4)
Purpose the property was purchased for
Nature of ???????????
Way the finances were managed
Way that the parties paid the bills (eg 80/20 split).
parties relationship
911
If there is no declaration of trust with regard to a property purchase, under what grounds can the person seeking a greater share use to rebut the presumption where equity followed the law? (4)
Purpose the property was purchased for
Nature of parties relationship
Way the ???????? were managed
Way that the parties paid the bills (eg 80/20 split).
finances
912
If there is no declaration of trust with regard to a property purchase, under what grounds can the person seeking a greater share use to rebut the presumption where equity followed the law? (4)
Purpose the property was purchased for
Nature of parties relationship
Way the finances were managed
Way that the parties ????????? (eg 80/20 split).
paid the bills
913
How can a declaration of trust be rebutted? (4)
Fraud
Mistake
Undue influence
Proprietory estoppel
914
How can a declaration of trust be rebutted? (4)
??????
Mistake
Undue influence
Proprietory estoppel
Fraud
915
How can a declaration of trust be rebutted? (4)
Fraud
??????????
Undue influence
Proprietory estoppel
Mistake
916
How can a declaration of trust be rebutted? (4)
Fraud
Mistake
??????????
Proprietory estoppel
Undue influence
917
How can a declaration of trust be rebutted? (4)
Fraud
Mistake
Undue influence
?????????????
Proprietory estoppel
918
What acts are required in order for someone to make a claim of proprietory estoppel? (3)
Assurance – a clear representation, or passive assurance (not correcting them when assuming)
Reliance on assurance – spent large sums renovating.
Detriment – can also be non monetary such as caring for the other for a long period.
918
What is proprietory estoppel?
One behaved in a way that led the other to believe they had rights in relation to the property, AND they have acted on this to their detriment.
919
What acts are required in order for someone to make a claim of proprietory estoppel? (3)
???????????
Reliance on assurance – spent large sums renovating.
Detriment – can also be non monetary such as caring for the other for a long period.
Assurance – a clear representation, or passive assurance (not correcting them when assuming)
920
What acts are required in order for someone to make a claim of proprietory estoppel? (3)
Assurance – a clear representation, or passive assurance (not correcting them when assuming)
?????????
Detriment – can also be non monetary such as caring for the other for a long period.
Reliance on assurance – spent large sums renovating.
921
What acts are required in order for someone to make a claim of proprietory estoppel? (3)
Assurance – a clear representation, or passive assurance (not correcting them when assuming)
Reliance on assurance – spent large sums renovating.
???????????
Detriment – can also be non monetary such as caring for the other for a long period.
922
What are the differences between Resulting trust, Constructive trust and proprietory estoppel?
Resulting trust - arises automatically on a gift
Constructive - court prevents unjust enrichment
Estoppel - prevents landowner going back on word
923
What are the differences between Resulting trust, Constructive trust and proprietory estoppel?
Resulting trust - ????????????
Constructive - court prevents unjust enrichment
Estoppel - prevents landowner going back on word
arises automatically on a gift
924
What are the differences between Resulting trust, Constructive trust and proprietory estoppel?
Resulting trust - arises automatically on a gift
Constructive - ?????????????
Estoppel - prevents landowner going back on word
court prevents unjust enrichment
925
What are the differences between Resulting trust, Constructive trust and proprietory estoppel?
Resulting trust - arises automatically on a gift
Constructive - court prevents unjust enrichment
Estoppel - ??????????
prevents landowner going back on word
926
What is a common intention constructive trust? (4)
Actual assertions / discussions leading to this belief.
Must be intending to share the land together (being together as a couple is insufficient)
Person must have SIGNIFICANTLY changed their position as a result of this discussion
If court decides this has arisen then they will look at the course of dealings to determine the share.
927
What is a common intention constructive trust? (4)
Actual ?????????????
Must be intending to share the land together (being together as a couple is insufficient)
Person must have SIGNIFICANTLY changed their position as a result of this discussion
If court decides this has arisen then they will look at the course of dealings to determine the share.
assertions / discussions leading to this belief.
928
What is a common intention constructive trust? (4)
Actual assertions / discussions leading to this belief.
Must be intending to ??????????????? (being together as a couple is insufficient)
Person must have SIGNIFICANTLY changed their position as a result of this discussion
If court decides this has arisen then they will look at the course of dealings to determine the share.
share the land together
929
What is a common intention constructive trust? (4)
Actual assertions / discussions leading to this belief.
Must be intending to share the land together (being together as a couple is insufficient)
Person must have ??????????????? as a result of this discussion
If court decides this has arisen then they will look at the course of dealings to determine the share.
SIGNIFICANTLY changed their position
930
What is a common intention constructive trust? (4)
Actual assertions / discussions leading to this belief.
Must be intending to share the land together (being together as a couple is insufficient)
Person must have SIGNIFICANTLY changed their position as a result of this discussion
If court decides this has arisen then they will ???????????? to determine the share.
look at the course of dealings
931
What is the difference between common intention constructive trust and proprietary estoppel?
Both very similar.
Common intention constructive trust arise from a shared intention, whereas proprietory estoppel prevents the landowner going back on their word.
932
What is the difference between charitable and non-charitable trusts?
To be a charitable trust requires
A defined charitable purpose
Meets a public benefit requirement
Must be exclusively charitable
Anything else is a non-charitable trust.
933
What are examples of charitable trusts?
Relief of poverty
Education
Religion
Health
Arts / Culture
Animal welfare
Amateur sport
Environmental protection
934
What would be the test for whether a potential charitable trust meets public benefit requirement?
An identifiable benefit to the public, or section of the public.
935
Will opening up your house to the public meet the test for potential charitable trust?
No, because there is no merit.
936
Will 'friends of mine' meet the test for a potential charitable trust?
Unlikely, as this would not be for the public.
937
Will 'to educate the children of ABC company' count as a potential charitable trust?
No because it's a closed group.
938
What is significant about setting up a potential charitable trust with the goal of easing poverty?
Unlike other charitable trusts, this CAN be for a closed group of the public.
939
Would 'my poor relations' be valid for a charitable trust?
It has held under caselaw, yes.
940
Will a potential charitable trust fail if it intends to charge fees?
Generally, yes.
941
How do public schools maintain charitable trust status?
By offering free scholarships and allowing use of their buildings.
942
What is the position on political purposes being the basis of a charitable trust?
They are not included. This is because a certain view may not be seen as for the general public. However, if the group is incidentally political, such as preventing homelessness, this IS public.
943
What is the difference between charitable and non-charitable trusts? (3)
A defined charitable purpose
Meets a public benefit requirement
Must be exclusively charitable
944
What is the difference between charitable and non-charitable trusts? (3)
A defined ???????
Meets a public benefit requirement
Must be exclusively charitable
charitable purpose
945
What is the difference between charitable and non-charitable trusts? (3)
A defined charitable purpose
Meets a ????????????
Must be exclusively charitable
public benefit requirement
946
What is the difference between charitable and non-charitable trusts? (3)
A defined charitable purpose
Meets a public benefit requirement
Must be ????????????
exclusively charitable
947
If a potential charitable trust is not exclusively charitable then will it fail?
It will fail. However, the court CAN sever the link in order to maintain the exclusivity to charitable
948
What is the maximum duration a charitable trust can run for?
In theory charitable trusts are allowed to run indefinitely. However, any initial capital must vest within 80 years.
949
What is the difficulty with regard to beneficiaries in private / non charitable trusts?
There may not be any - in which case there is nobody to oversee whether the charitable trust is being run correctly.
950
How are private / non charitable trusts governed?
By the Attorney-General
951
What is the inaliability rule?
It is a rule that prevents trust capital being tied up forever in non charitable trusts.
952
What are the limits on how long capital may be tied up in non charitable trusts?
The length of a life in being plus 21 years
953
How long may charitable and non charitable trusts persist?
Charitable - indefinitely but initial capital to vest within 80 years
Non-charitable - the length of a life in being, plus 21 years.
954
What is the Cy-pres doctrine?
Allows a gift to be moved to another charity, under certain conditions.
955
When will the Cy-pres doctrine apply?
When there is evidence of GENERAL charitable intention show. This may be either for an initial failure of a gift, or subsequent failure of a gift.
956
Cy-pres doctrine:
How will an initial failure of a gift take place?
Where the charity closed before the death of the testator.
957
Cy-pres doctrine:
How will the subsequent failure of a gift take place?
Where the charity closes before the trust funds are exhausted.
958
Cy-pres doctrine:
What must the will show in order for the Cy-pres doctrine to apply?
A general charitable intention will suffice for an initial failure of gift to be transferred to an alternate charity.
For a subsequent failure of gift through there is NO requirement to show general charitable intention.
959
Cy-pres doctrine:
What would satisfy the test of 'general charitable intention'?
The more specific the gift(s) the less likely.
Caselaw holds that one gift to a specific charity is unlikely to show a general charitable intention.
960
What is an honourary trust?
One of non charitable purpose. Generally only for maintenance of animals, saying of private masses and maintenance of specific graves.
There are no beneficiaries to enforce, hence the 'honour' of the trustee to maintain.
If such a trust is set up to care for a dog with £10,000 for over 21 years then it will FAIL from the start. This is because the trust is likely to last longer than the dog.
961
Appointment of trustees
What condition is there upon a trustee accepting the role?
They must accept the trust, but can refuse for any reason.
962
Appointment of trustees
Maximum number?
Any number, aside from trusts of land needing 2-4.
963
Appointment of trustees
Can a trust document confer power to appoint additional trustees?
Yes to a maximum of four, even if it doesn't involve land.
Note: this is different from the initial trust established by the settlor, which can have any number of trustees.
964
Appointment of trustees
If a trustee wishes to cease acting, has died, or is incapable, who can decide to replace?
The existing trustees, unless the person is the last surviving trustee, in which case it is the PR of the last trustee who can appoint.
965
Appointment of trustees
What happens if nobody is willing to act as a trustee after the final trustee has ceased?
The court can appoint.
966
Appointment of trustees
What is the requirement for appointing a new trustee?
Must be in writing, ideally by deed, so that trust property can vest in the new trustee.
967
Appointment of trustees
Under what circumstances can the beneficiaries be involved in appointment of trustees? (4)
All must apply:-
Where nobody else nominated in trust document
Beneficiaries are over 18 with mental capacity
Beneficiaries have absolute (not contingent) entitlement
All agree
968
Appointment of trustees
Under what circumstances can the beneficiaries be involved in appointment of trustees? (4)
Where nobody else ?????????
Beneficiaries are over 18 with mental capacity
Beneficiaries have absolute (not contingent) entitlement
All agree
nominated in trust document
969
Appointment of trustees
Under what circumstances can the beneficiaries be involved in appointment of trustees? (4)
Where nobody else nominated in trust document
Beneficiaries are ????????????
Beneficiaries have absolute (not contingent) entitlement
All agree
over 18 with mental capacity
970
Appointment of trustees
Under what circumstances can the beneficiaries be involved in appointment of trustees? (4)
Where nobody else nominated in trust document
Beneficiaries are over 18 with mental capacity
Beneficiaries have ?????????? entitlement
All agree
absolute (not contingent)
971
Appointment of trustees
Under what circumstances can the beneficiaries be involved in appointment of trustees? (4)
Where nobody else nominated in trust document
Beneficiaries are over 18 with mental capacity
Beneficiaries have absolute (not contingent) entitlement
All ??????
agree
972
What are the three parts of the fiduciary duty of a trustee over the trust?
Duty not to profit from fiduciary position
Trustees not to purchase trust property
Not to put himself in a position where his interest and duty conflict.
973
What are the three parts of the fiduciary duty of a trustee over the trust?
Duty not to profit from ??????????
Trustees not to purchase trust property
Not to put himself in a position where his interest and duty conflict.
fiduciary position
974
What are the three parts of the fiduciary duty of a trustee over the trust?
Duty not to profit from fiduciary position
Trustees not to purchase ???????????
Not to put himself in a position where his interest and duty conflict.
trust property
975
What three circumstances will see the removal of a trustee?
Unfit to act (breach of trust)
Incapable (incapacity)
Bankruptcy
975
What are the three parts of the fiduciary duty of a trustee over the trust?
Duty not to profit from fiduciary position
Trustees not to purchase trust property
Not to put himself in a position where his ????????? conflict.
interest and duty
975
Under what circumstances may a trustee retire without replacement?
With consent of all co-trustees and any person named in trust document
And at least two trustees OR a trust corporation remain.
976
What three circumstances will see the removal of a trustee?
Unfit to act (????????????)
Incapable (incapacity)
Bankruptcy
breach of trust
977
What three circumstances will see the removal of a trustee?
Unfit to act (breach of trust)
???????????
Bankruptcy
Incapable (incapacity)
978
What three circumstances will see the removal of a trustee?
Unfit to act (breach of trust)
Incapable (incapacity)
?????????????
Bankruptcy
979
What happens when a trust contains shares in a company and a trustee is made a director?
In this case a constructive trust arises with regard to the salary, in favour of the beneficiaries of the trust.
One exception – when the trustee can show they would have been appointed as director IRRESPECTIVELY.
980
May a trust corporation charge for its services?
Yes.
981
What is the self dealing rule?
The duty not to purchase trust property. Applies even if at full market value and in good faith.
982
What options do the beneficiaries have with regard to a trustee entering into a self-dealing transaction?
They can ask that it is void, set aside, the property returned, and the money refunded.
983
What are the exceptional circumstances where self-dealing is permitted?
Where the court orders it
For market value at an auction
984
Can the trustee purchase the beneficial interest of a beneficiary? Only if: (3)
Only if:
The price paid is fair
All material facts disclosed to beneficiary
No abuse of position
Transaction set aside if ANY of these requirements not met.
985
Can the trustee purchase the beneficial interest of a beneficiary?
Only if:
The price paid is fair
???????????? disclosed to beneficiary
No abuse of position
Transaction set aside if ANY of these requirements not met.
All material facts
986
Can the trustee purchase the beneficial interest of a beneficiary?
Only if:
The price paid is ??????????
All material facts disclosed to beneficiary
No abuse of position
Transaction set aside if ANY of these requirements not met.
fair
987
Can the trustee purchase the beneficial interest of a beneficiary?
Only if:
The price paid is fair
All material facts disclosed to beneficiary
???????? of position
Transaction set aside if ANY of these requirements not met.
No abuse
988
Other than fiduciary duty, the duty not to profit from trusteeship and the self dealing rule, what other duties do trustees have? (10)
Equitable duty to deal appropriately with property
Make sure title to trust property held appropriate and separately from own assets
Ensure to observe terms of the trust
To act jointly if more than one
To act personally and not delegate
To take possession of trust property and ensure in control
To keep accounts and records
To act impartially to beneficiaries individually and treat them equally (unless document says otherwise)
Duty of confidentiality
Duty to invest
989
Other than fiduciary duty, the duty not to profit from trusteeship and the self dealing rule, what other duties do trustees have? (10)
?????????? to deal appropriately with property
Make sure title to trust property held appropriate and separately from own assets
Ensure to observe terms of the trust
To act jointly if more than one
To act personally and not delegate
To take possession of trust property and ensure in control
To keep accounts and records
To act impartially to beneficiaries individually and treat them equally (unless document says otherwise)
Duty of confidentiality
Duty to invest
Equitable duty
990
Other than fiduciary duty, the duty not to profit from trusteeship and the self dealing rule, what other duties do trustees have? (10)
Equitable duty to deal appropriately with property
Make sure title to trust property held appropriate and ??????????????
Ensure to observe terms of the trust
To act jointly if more than one
To act personally and not delegate
To take possession of trust property and ensure in control
To keep accounts and records
To act impartially to beneficiaries individually and treat them equally (unless document says otherwise)
Duty of confidentiality
Duty to invest
separately from own assets
991
Other than fiduciary duty, the duty not to profit from trusteeship and the self dealing rule, what other duties do trustees have? (10)
Equitable duty to deal appropriately with property
Make sure title to trust property held appropriate and separately from own assets
Ensure to observe terms of ???????
To act jointly if more than one
To act personally and not delegate
To take possession of trust property and ensure in control
To keep accounts and records
To act impartially to beneficiaries individually and treat them equally (unless document says otherwise)
Duty of confidentiality
Duty to invest
the trust
992
Other than fiduciary duty, the duty not to profit from trusteeship and the self dealing rule, what other duties do trustees have? (10)
Equitable duty to deal appropriately with property
Make sure title to trust property held appropriate and separately from own assets
Ensure to observe terms of the trust
???????? if more than one
To act personally and not delegate
To take possession of trust property and ensure in control
To keep accounts and records
To act impartially to beneficiaries individually and treat them equally (unless document says otherwise)
Duty of confidentiality
Duty to invest
To act jointly
993
Other than fiduciary duty, the duty not to profit from trusteeship and the self dealing rule, what other duties do trustees have? (10)
Equitable duty to deal appropriately with property
Make sure title to trust property held appropriate and separately from own assets
Ensure to observe terms of the trust
To act jointly if more than one
????????? and not delegate
To take possession of trust property and ensure in control
To keep accounts and records
To act impartially to beneficiaries individually and treat them equally (unless document says otherwise)
Duty of confidentiality
Duty to invest
To act personally
994
Other than fiduciary duty, the duty not to profit from trusteeship and the self dealing rule, what other duties do trustees have? (10)
Equitable duty to deal appropriately with property
Make sure title to trust property held appropriate and separately from own assets
Ensure to observe terms of the trust
To act jointly if more than one
To act personally and not delegate
??????????? trust property and ensure in control
To keep accounts and records
To act impartially to beneficiaries individually and treat them equally (unless document says otherwise)
Duty of confidentiality
Duty to invest
To take possession of
995
Other than fiduciary duty, the duty not to profit from trusteeship and the self dealing rule, what other duties do trustees have? (10)
Equitable duty to deal appropriately with property
Make sure title to trust property held appropriate and separately from own assets
Ensure to observe terms of the trust
To act jointly if more than one
To act personally and not delegate
To take possession of trust property and ensure in control
To keep ?????????
To act impartially to beneficiaries individually and treat them equally (unless document says otherwise)
Duty of confidentiality
Duty to invest
accounts and records
996
Other than fiduciary duty, the duty not to profit from trusteeship and the self dealing rule, what other duties do trustees have? (10)
Equitable duty to deal appropriately with property
Make sure title to trust property held appropriate and separately from own assets
Ensure to observe terms of the trust
To act jointly if more than one
To act personally and not delegate
To take possession of trust property and ensure in control
To keep accounts and records
To act impartially to ???????????? (unless document says otherwise)
Duty of confidentiality
Duty to invest
beneficiaries individually and treat them equally
997
Other than fiduciary duty, the duty not to profit from trusteeship and the self dealing rule, what other duties do trustees have? (10)
Equitable duty to deal appropriately with property
Make sure title to trust property held appropriate and separately from own assets
Ensure to observe terms of the trust
To act jointly if more than one
To act personally and not delegate
To take possession of trust property and ensure in control
To keep accounts and records
To act impartially to beneficiaries individually and treat them equally (unless document says otherwise)
Duty of ?????????
Duty to invest
confidentiality
998
Other than fiduciary duty, the duty not to profit from trusteeship and the self dealing rule, what other duties do trustees have? (10)
Equitable duty to deal appropriately with property
Make sure title to trust property held appropriate and separately from own assets
Ensure to observe terms of the trust
To act jointly if more than one
To act personally and not delegate
To take possession of trust property and ensure in control
To keep accounts and records
To act impartially to beneficiaries individually and treat them equally (unless document says otherwise)
Duty of confidentiality
Duty to ?????
invest
999
The duty for trustees to invest is governed by which two authorities?
Trust document
Statute
1000
What restriction on investing in land do trustees have?
Cannot purchase land abroad (for the trust)
1001
Duty of trustees to invest
Does the investment need to be land?
No, can also be items, products, shares, antiques etc.
1002
Duty of trustees to invest
Does the investment need to be income generating?
No, things like antiques don't generate income, but do count.
1003
Duty of trustees to invest
Is it possible for the trust document to override the rule about not investing in land abroad?
Yes.
1004
Duty of trustees to invest
Can the trust document limit investments in certain things?
Yes, for example tobacco products.
1005
Duty of trustees to invest
What two criteria should the trustee have in mind when choosing?
Suitability of type of investment (For example – if turn 18 shortly and the trust starts at 17, no real expectations for big gains)
Need for diversification (Mix of both for capital growth AND income generation)
1006
Duty of trustees to invest
What does the need for diversification refer to?
A mix of both capital growth and income generation.
1007
Duty of trustees to invest
What limitations are there on whether the investment is in freehold or leasehold land?
Either is ok.
1008
Duty of trustees to invest
What are the four criteria that trustees must consider?
Which investments are authorised
The criteria for investments (suitability and diversification)
Taking advice
Keeping investments under review.
1009
Duty of trustees to invest
What are the four criteria that trustees must consider?
Which investments are ??????????
The criteria for investments (suitability and diversification)
Taking advice
Keeping investments under review.
authorised (statute or trust doc)
1010
Duty of trustees to invest
What are the four criteria that trustees must consider?
Which investments are authorised
The criteria for investments (???????? and ????????)
Taking advice
Keeping investments under review.
suitability and diversification
1011
Duty of trustees to invest
What are the four criteria that trustees must consider?
Which investments are authorised
The criteria for investments (suitability and diversification)
???????
Keeping investments under review.
Taking advice
1012
Duty of trustees to invest
What are the four criteria that trustees must consider?
Which investments are authorised
The criteria for investments (suitability and diversification)
Taking advice
Keeping investments ????????
under review.
1013
Duty of trustees to invest
What is the scope of taking advice? (3)
Duty to take advice
Does not need to be qualified person
Need not if advice is unnecessary and unreasonable in all the circumstances (eg very small investment over very short period of time)
1014
Duty of trustees to invest
What is the scope of taking advice? (3)
????????? to take advice
Does not need to be qualified person
Need not if advice is unnecessary and unreasonable in all the circumstances (eg very small investment over very short period of time)
Duty (exists)
1015
Duty of trustees to invest
What is the scope of taking advice? (3)
Duty to take advice
????????? qualified person
Need not if advice is unnecessary and unreasonable in all the circumstances (eg very small investment over very short period of time)
Does not need to be
1016
Duty of trustees to invest
What is the scope of taking advice? (3)
Duty to take advice
Does not need to be qualified person
Need not if advice is ?????????????? (eg very small investment over very short period of time)
unnecessary and unreasonable in all the circumstances
1017
Duty of trustees to invest
Can this be delegated?
The duty to delegate may not be delegated, but the choice of investments may be delegated to an investment manager.
1018
Duty of trustees to invest
When will a trustee be liable to a beneficiary for poos investments?
When they have not followed the rules set out. Otherwise, a poor investment record but having followed the rules means they would not normally be liable.
1019
What is covered by the power of maintenance in a trust?
Maintenance
Education
Benefit
1020
Is the power of maintenance paid from income or capital?
Income only.
1021
Who decides whether maintenance will be paid to a beneficiary?
The trustees, at their discretion.
1022
To whom can trustees advance capital (not interest)?
A beneficiary who has an interest in the trust capital, whether remainer, vested or contingent. This does not apply to a life interest.
1023
What are the three provisos when trustees are considering exercising their discretion to advance?
Must not exceed the total entitlement of that person's share. Eg one third, where there's 3 children.
Advances made should factor into the final distribution.
Requires consent of anybody with prior interest if it will prejudice their entitlement. Must be 18+, have capacity and give written consent. Typically this will be someone with a life interest.
1024
What are the three provisos when trustees are considering exercising their discretion to advance?
Must not exceed the ????????????. Eg one third, where there's 3 children.
Advances made should factor into the final distribution.
Requires consent of anybody with prior interest if it will prejudice their entitlement. Must be 18+, have capacity and give written consent.
total entitlement of that person's share
1025
What are the three provisos when trustees are considering exercising their discretion to advance?
Must not exceed the total entitlement of that person's share. Eg one third, where there's 3 children.
?????????????? should factor into the final distribution.
Requires consent of anybody with prior interest if it will prejudice their entitlement. Must be 18+, have capacity and give written consent.
Advances made
1026
What are the three provisos when trustees are considering exercising their discretion to advance?
Must not exceed the total entitlement of that person's share. Eg one third, where there's 3 children.
Advances made should factor into the final distribution.
Requires consent of ?????????????. Must be 18+, have capacity and give written consent.
anybody with prior interest if it will prejudice their entitlement
1027
Is it possible to advance a life interest?
No.
1028
Until what age can a beneficiary receive funds under the power of advancement?
Any age. Note: this is different from the power of maintenance which covers maintenance, education and benefit.
1029
To whom is advancement paid when the beneficiary is a minor?
To the purpose / establishment or the minor's parents / guardian. This is because a minor can't give valid receipt.
1030
What rights do beneficiaries have over the trust / trustees? (3)
Right to inspect documents
Right to appt new trustees subject to over 18 / capacity / absolutely entitled / all agree
Compel trustees to fulfil duties, including by court (example: failed to invest properly)
1031
What rights do beneficiaries have over the trust / trustees? (3)
Right to ?????????????
Right to appt new trustees subject to over 18 / capacity / absolutely entitled / all agree
Compel trustees to fulfil duties, including by court (example: failed to invest properly)
inspect documents
1032
What rights do beneficiaries have over the trust / trustees? (3)
Right to inspect documents
Right to ???????????? subject to over 18 / capacity / absolutely entitled / all agree
Compel trustees to fulfil duties, including by court (example: failed to invest properly)
appt new trustees
1033
What rights do beneficiaries have over the trust / trustees? (3)
Right to inspect documents
Right to appt new trustees subject to over 18 / capacity / absolutely entitled / all agree
Compel trustees to ???????????, including by court (example: failed to invest properly)
fulfil duties
1034
What must beneficiaries show in order to challenge a decision of the trustees?
That it is irrational.
1035
Can a beneficiary rely on something that a trustee has told them, for example about an annual payment?
Yes, and this is called legitimate expectation.
1036
Breaches of trust
Is it a breach if the act by trustee was one they were unauthorised to perform, but did so in good faith?
Yes.
1037
Breaches of trust
What is the standard of care?
Reasonable standard of care and skill taking into account any expertise the trustee has.
1038
Breaches of trust
If a trustee is liable, are they personally liable or is the trust?
They are personally liable. They must pay with their own money.
1039
Breaches of trust
Is the failure to take proper advice a breach if it leads to losses?
Yes.
1040
Breaches of trust
If the trustee made a good investment, but there were losses due to the market, is this a breach?
No.
1041
Breaches of trust
Is it possible to offset losses against gains elsewhere?
No.
1042
Breaches of trust
Are other trustees liable for the actions of another?
Only if they failed to supervise the trustee that breached. If so, they can also be liable for the loss.
1043
Breaches of trust
Where multiple trustees are in breach, how is liability calculated?
It is joint and several.
1044
Breaches of trust
What is the meaning of joint and several?
It means the beneficiary can sue all or any of the liable trustees to recover the loss.
1045
Breaches of trust
What are the defences available to being liable for a breach? (4)
Consent of beneficiaries
Limitation period expired (not available for fraud)
Exclusion clause
Court concludes trustee acted honestly and ought fairly to be excused.
1046
Breaches of trust
What are the defences available to being liable for a breach? (4)
????????? beneficiaries
Limitation period expired (not available for fraud)
Exclusion clause
Court concludes trustee acted honestly and ought fairly to be excused.
Consent of
1047
Breaches of trust
What are the defences available to being liable for a breach? (4)
Consent of beneficiaries
???????????? expired (not available for fraud)
Exclusion clause
Court concludes trustee acted honestly and ought fairly to be excused.
Limitation period
1048
Breaches of trust
What are the defences available to being liable for a breach? (4)
Consent of beneficiaries
Limitation period expired (not available for fraud)
Exclusion clause
Court concludes trustee acted honestly and ought fairly to be excused.
Exclusion
1049
Breaches of trust
What are the defences available to being liable for a breach? (4)
Consent of beneficiaries
Limitation period expire (not available for fraud)
Exclusion clause
Court concludes trustee acted ?????? and ??????????????
honestly and ought fairly to be excused.
1050
Breaches of trust
Under what conditions can beneficiaries consent to a breach? (3)
They were provided all knowledge of key facts
Capacity, and 18+
All consented (if not, still a breach)
1051
Breaches of trust
Under what conditions can beneficiaries consent to a breach? (3)
They were provided all ??????????
Capacity, and 18+
All consented (if not, still a breach)
knowledge of key facts
1052
Breaches of trust
Under what conditions can beneficiaries consent to a breach? (3)
They were provided all knowledge of key facts
????????, and ????
All consented (if not, still a breach)
Capacity, and 18+
1053
Breaches of trust
Under what conditions can beneficiaries consent to a breach? (3)
They were provided all knowledge of key facts
Capacity, and 18+
??????????? (if not, still a breach)
All consented
1054
Breaches of trust
What is the limitation period
6 years from the creation of the trust, thought this can also be from the time an interest becomes vested too.
1055
Breaches of trust
What are the possible consequences if a trustee is found liable? (4)
Return property to trust
Money paid to beneficiary to cover losses as a result of the breach
If fraudulent other trustees can be liable under failure to supervise
If one 'more guilty' than the others the court may order one trustee to indemnify the others.
1056
Breaches of trust
What are the possible consequences if a trustee is found liable? (4)
Return ????????
Money paid to beneficiary to cover losses as a result of the breach
If fraudulent other trustees can be liable under failure to supervise
If one 'more guilty' than the others the court may order one trustee to indemnify the others.
property to trust
1057
Breaches of trust
What are the possible consequences if a trustee is found liable? (4)
Return property to trust
Money paid to beneficiary to ???????????
If fraudulent other trustees can be liable under failure to supervise
If one 'more guilty' than the others the court may order one trustee to indemnify the others.
cover losses as a result of the breach
1058
Breaches of trust
What are the possible consequences if a trustee is found liable? (4)
Return property to trust
Money paid to beneficiary to cover losses as a result of the breach
If fraudulent other trustees can be liable under ?????????????
If one 'more guilty' than the others the court may order one trustee to indemnify the others.
failure to supervise
1059
Breaches of trust
What are the possible consequences if a trustee is found liable? (4)
Return property to trust
Money paid to beneficiary to cover losses as a result of the breach
If fraudulent other trustees can be liable under failure to supervise
If one 'more guilty' than the others the court may order ?????????????
one trustee to indemnify the others.
1060
Breach of trust
What happens where trust funds are mixed in a trustees bank account?
Treated as withdrawing own funds first.
1061
Breach of trust
What happens where trust funds are taken by a trustee, but they buy something with it?
Beneficiaries can claim a charge over the item.
1062
Breach of trust
What happens where an item a trustee has purchased using trust fund money appreciates in value?
Claim back at the higher value.
1063
Breach of trust
What happens where two trust funds are mixed together in a current account?
First in, first out.
1064
Breach of trust
What happens where two trust funds are mixed together in a savings account?
Money is retrieved proportionately.
1065
Breach of trust
What are the four ways a third party can become involve with receiving trust property from a trustee?
Third party is a BONA FIDE PURCHASER
An ‘innocent volunteer recipient’
A KNOWING RECIPIENT
A dishonest accessory
1066
Breach of trust: Third parties
What constitutes a bona fide purchaser, and what are the consequences?
Good faith, no notice of trust
Wouldn't be fair to claim against them
Beneficiaries have no claim
1067
Breach of trust: Third parties
What constitutes an innocent volunteer recipient, and what are the consequences?
No payment involved, no knowledge of trust
No personal claim possible
Proprietory claim possible.
1068
Breach of trust: Third parties
What constitutes a knowing recipient, and what are the consequences?
Knew about the trust
Is treated as a trustee
Beneficiaries need to show recipient had knowledge of breach of trust, or should have done with reasonable enquiry
Personal claim ALLOWED
1069
Breach of trust: Third parties
What constitutes a dishonest accessory
Facilitated breach of trust dishonestly
Personally liable as if trustee
Passive assistance – a non-trustee took property from trust. A third party knew about it and did nothing. Must have been DISHONEST.
Personal action can be taken. Beneficiaries can sue them personally.
Proprietary claim unlikely, as not actually taken property.
1070
Breach of trust
Other than damages, what other remedies are available, for example for a unique item?
Enforcement - if feasible (must have jurisdiction)
Hardship test used - that the hardship of the D is balance against the hardship of the Claimant by NOT ordering the remedy.
1071
1072
When interviewing a client with regard to a lease, what checks should we make? (7)
Whether there's a management company
Is there a ground rent or service charge?
Any restrictions on alterations, sublettings or business use?
Does the lease allow for extensions?
IS the landlord's consent needed for planned changes?
Are there any disputes with the landlord?
Is the landlord's consent needed for any changes?
1073
When interviewing a client with regard to a lease, what checks should we make? (7)
Whether there's a ??????????? company
Is there a ground rent or service charge?
Any restrictions on alterations, sublettings or business use?
Does the lease allow for extensions?
IS the landlord's consent needed for planned changes?
Are there any disputes with the landlord?
Is the landlord's consent needed for any changes?
management
1074
When interviewing a client with regard to a lease, what checks should we make? (7)
Whether there's a management company
Is there a ????????????? charge?
Any restrictions on alterations, sublettings or business use?
Does the lease allow for extensions?
IS the landlord's consent needed for planned changes?
Are there any disputes with the landlord?
Is the landlord's consent needed for any changes?
ground rent or service
1075
When interviewing a client with regard to a lease, what checks should we make? (7)
Whether there's a management company
Is there a ground rent or service charge?
Any restrictions on ?????, ????????? or ????????? use?
Does the lease allow for extensions?
IS the landlord's consent needed for planned changes?
Are there any disputes with the landlord?
Is the landlord's consent needed for any changes?
alterations, sublettings or business
1076
When interviewing a client with regard to a lease, what checks should we make? (7)
Whether there's a management company
Is there a ground rent or service charge?
Any restrictions on alterations, sublettings or business use?
Does the lease allow for ?????????
IS the landlord's consent needed for planned changes?
Are there any disputes with the landlord?
Is the landlord's consent needed for any changes?
extensions
1077
When interviewing a client with regard to a lease, what checks should we make? (7)
Whether there's a management company
Is there a ground rent or service charge?
Any restrictions on alterations, sublettings or business use?
Does the lease allow for extensions?
IS the landlord's consent needed for ?????????????
Are there any disputes with the landlord?
Is the landlord's consent needed for any changes?
planned changes
1078
When interviewing a client with regard to a lease, what checks should we make? (7)
Whether there's a management company
Is there a ground rent or service charge?
Any restrictions on alterations, sublettings or business use?
Does the lease allow for extensions?
IS the landlord's consent needed for planned changes?
Are there any disputes with ?????????
Is the landlord's consent needed for any changes?
the landlord?
1079
When interviewing a client with regard to a lease, what checks should we make? (7)
Whether there's a management company
Is there a ground rent or service charge?
Any restrictions on alterations, sublettings or business use?
Does the lease allow for extensions?
IS the landlord's consent needed for planned changes?
Are there any disputes with the landlord?
Is the landlord's consent needed for ???????????
any changes
1080
What type of leases can be subject to an authorised guarantee agreement?
Commercial leases
1081
What is the key difference for buyers under LTT (Land transaction tax in Wales, with SDLT in England?
LTT has no first time buyer relief.
However, LTT does not kick in until £225k for everyone.
1082
What is the additional percentage SDLT payable for purchasing additional homes?
5%
1083
Easements: What are the circumstances where a legal easement will NOT be binding in registered land?
If it is NOT registered, AND the buyer did not have noticed.
1084
Easements: What are the circumstances where a legal easement will NOT be binding in unregistered land?
If it is not registered as a land charge, even if buyer had actual notice.
1085
Trusts - perpetuity - what are the time limits for standard trusts, private purposes and charities?
Standard 125 years
Private purpose 21 years
Charities - no limit
1086
Restrictive Covenants - what are the three options if you can't find the person who created the restrictive covenant, and someone has used it without issue?
Walk away
Get insurance from seller (conditional on not contacting covenant owner)
Find and contact covenant owner to see if they will remove or amend.
1087
When a trust is made, what is the scope to any requirement to invest in investments that the testator would have approved on?
It should be taken into account but the need to diversify is a stronger factor, and in any case the trustees should always take investment advice.
1088
At what age can income be paid from a trust (unless the trust document states otherwise)?
18
1089
Can there be an advancement for beneficiaries over the age of 18?
Yes, on a discretionary basis.
1090
What are the main two requirements / liabilities for joint executors? (3)
The need to act in good faith and in the interest of the estate.
Joint and several liability - the acts of one binds the other and the estate.
Must come together to transfer land.
1091
What are the main two requirements / liabilities for joint executors? (3)
The need to ?????????????????.
Joint and several liability - the acts of one binds the other and the estate.
Must come together to transfer land.
act in good faith and in the interest of the estate
1092
What are the main two requirements / liabilities for joint executors? (3)
The need to act in good faith and in the interest of the estate.
?????????????? - the acts of one binds the other and the estate.
Must come together to transfer land.
Joint and several liability
1093
What are the main two requirements / liabilities for joint executors? (3)
The need to act in good faith and in the interest of the estate.
Joint and several liability - the acts of one binds the other and the estate.
Must come together?????????????.
to transfer land
Note: and shares!
1094
How long do executors need to wait before before distribution after posting an advert in the London Gazette?
2 months
Note: Not 6.
1095
Will there be any IHT to pay where a house passes to a spouse via survivorship?
No.
1096
Legal writing
After the names / dates and so on, what is it good practice to include first?
An introductory paragraph.
1097
Wills
If a will has been provided, what comment should we make early on?
Whether it appears to be valid.
1098
Wills
Within how long of the deceased's death does any variation of gift need to be put in writing?
2 years
1099
Wills
Will a gift of a house to the testator's brother pass to the brother's children if the brother dies before the testator?
No. This would only apply to a gift to the testator's *own* children, so this gift would fail.
1100
Wills and probate
How could a grant of probate be described to somebody that doesn't know what it is?
This document is evidence of your authority to deal with the various assets, such as selling shares or accessing bank accounts.
1101
What is the name of the type of declaration which parties enter into when declaring how the property is held as tenants in common?
A declaration of trust
1102
Which is the form that is filled in which transfers property from owner to owner?
TR1 form.
1103
Under what conditions would CGT not apply? (4)
Own or main residence
Not absent (significantly) during ownership
Grounds or garden not greater than 0.5 hectare
No part used exclusively for business during ownership
1104
Under what conditions would CGT not apply? (4)
????????? residence
Not absent (significantly) during ownership
Grounds or garden not greater than 0.5 hectare
No part used exclusively for business during ownership
Own or main
1105
Under what conditions would CGT not apply? (4)
Own or main residence
???????? (significantly) during ownership
Grounds or garden not greater than 0.5 hectare
No part used exclusively for business during ownership
Not absent
1106
Under what conditions would CGT not apply? (4)
Own or main residence
Not absent (significantly) during ownership
Grounds or garden not greater than ??????
No part used exclusively for business during ownership
0.5 hectare
1107
Under what conditions would CGT not apply? (4)
Own or main residence
Not absent (significantly) during ownership
Grounds or garden not greater than 0.5 hectare
No part used ?????????? during ownership
exclusively for business
1108
Within how long should CGT be paid?
60 days from date of completion.
1109
Upon discovering defects with a property, how should an approach for a reduction in fee be handled? (4)
Gain three quotes for remedial work
Consider price willing to pay for house in light
Use estate agent's assistance
Contact mortgage lender to see if any effect
Note: Could ask ask the seller to complete work before completion - insert clause into contract if agreed.
1110
Upon discovering defects with a property, how should an approach for a reduction in fee be handled? (4)
????????? for remedial work
Consider price willing to pay for house in light
Use estate agent's assistance
Contact mortgage lender to see if any effect
Note: Could ask ask the seller to complete work before completion - insert clause into contract if agreed.
Gain three quotes
1111
Upon discovering defects with a property, how should an approach for a reduction in fee be handled? (4)
Gain three quotes for remedial work
Consider ?????????? in light
Use estate agent's assistance
Contact mortgage lender to see if any effect
Note: Could ask ask the seller to complete work before completion - insert clause into contract if agreed.
price willing to pay for house
1112
Upon discovering defects with a property, how should an approach for a reduction in fee be handled? (4)
Gain three quotes for remedial work
Consider price willing to pay for house in light
Use ??????????? assistance
Contact mortgage lender to see if any effect
Note: Could ask ask the seller to complete work before completion - insert clause into contract if agreed.
estate agent's
1113
Upon discovering defects with a property, how should an approach for a reduction in fee be handled? (4)
Gain three quotes for remedial work
Consider price willing to pay for house in light
Use estate agent's assistance
Contact ???????????? to see if any effect
Note: Could ask ask the seller to complete work before completion - insert clause into contract if agreed.
mortgage lender
1114
How does a tenant notify the landlord of a desire to end a tenancy?
s27 notice.
1115
Does the annual relief of £3000 for Capital Gains Tax roll over to a second year?
No, that is IHT. CGT is an annual relief of £3000 per year and does not roll over.
1116
What is a remainderman for the purposes of SQE2?
Someone who inherits a trust property AFTER the life trust has been finished.
1117
TR1: Freehold categories? (6)
Transferor and transferee details
Transferor will transfer full title guarantee the property
Execution as a deed to John Smith in the presence of witness
Signatures of transferor and witness
Witness details
Schedule - address, title number
1118
TR1: Freehold categories? (6)
????????? and ?????????? details
Transferor will transfer full title guarantee the property
Execution as a deed to John Smith in the presence of witness
Signatures of transferor and witness
Witness details
Schedule - address, title number
Transferor and transferee
1119
TR1: Freehold categories? (6)
Transferor and transferee details
Transferor will transfer ???????????????? the property
Execution as a deed to John Smith in the presence of witness
Signatures of transferor and witness
Witness details
Schedule - address, title number
full title guarantee
1120
TR1: Freehold categories? (6)
Transferor and transferee details
Transferor will transfer full title guarantee the property
Execution ?????????? to John Smith ????????
Signatures of transferor and witness
Witness details
Schedule - address, title number
as a deed; in the presence of witness
1121
TR1: Freehold categories? (6)
Transferor and transferee details
Transferor will transfer full title guarantee the property
Execution as a deed to John Smith in the presence of witness
????????? of transferor and witness
Witness details
Schedule - address, title number
Signatures
1122
TR1: Freehold categories? (6)
Transferor and transferee details
Transferor will transfer full title guarantee the property
Execution as a deed to John Smith in the presence of witness
Signatures of transferor and witness
??????? details
Schedule - address, title number
Witness
1123
TR1: Freehold categories? (6)
Transferor and transferee details
Transferor will transfer full title guarantee the property
Execution as a deed to John Smith in the presence of witness
Signatures of transferor and witness
Witness details
Schedule - ??????, ????????
address, title number
1124
TR1: Leasehold categories? (8)
Landlord and Tenant details
Definitions - property, rent and term (give details)
Demise - In consideration of the Rent and the tenant’s covenants, the Landlord demises the property to the Tenant for the Term.
Tenant's covenants eg to pay rent, to maintain repair, not to sublet, to allow reasonable inspection
Landlord's covenant - to allow quiet enjoyment
Termination details - 6 months written notice
This is a deed
Executed as a deed signatures of Landlord & witness, tenant & witness
1125
TR1: Leasehold categories? (8)
??? and ???? details
Definitions - property, rent and term (give details)
Demise - In consideration of the Rent and the tenant’s covenants, the Landlord demises the property to the Tenant for the Term.
Tenant's covenants eg to pay rent, to maintain repair, not to sublet, to allow reasonable inspection
Landlord's covenant - to allow quiet enjoyment
Termination details - 6 months written notice
This is a deed
Executed as a deed signatures of Landlord & witness, tenant & witness
Landlord and Tenant
1126
TR1: Leasehold categories? (8)
Landlord and Tenant details
Definitions - ??????, ????? and ????? (give details)
Demise - In consideration of the Rent and the tenant’s covenants, the Landlord demises the property to the Tenant for the Term.
Tenant's covenants eg to pay rent, to maintain repair, not to sublet, to allow reasonable inspection
Landlord's covenant - to allow quiet enjoyment
Termination details - 6 months written notice
This is a deed
Executed as a deed signatures of Landlord & witness, tenant & witness
property, rent and term
1127
TR1: Leasehold categories? (8)
Landlord and Tenant details
Definitions - property, rent and term (give details)
Demise - In consideration of the Rent and the tenant’s covenants, the Landlord ??????????????????.
Tenant's covenants eg to pay rent, to maintain repair, not to sublet, to allow reasonable inspection
Landlord's covenant - to allow quiet enjoyment
Termination details - 6 months written notice
This is a deed
Executed as a deed signatures of Landlord & witness, tenant & witness
demises the property to the Tenant for the Term
1128
TR1: Leasehold categories? (8)
Landlord and Tenant details
Definitions - property, rent and term (give details)
Demise - In consideration of the Rent and the tenant’s covenants, the Landlord demises the property to the Tenant for the Term.
Tenant's covenants eg to pay rent, to maintain repair, not to sublet, to allow ???????????
Landlord's covenant - to allow quiet enjoyment
Termination details - 6 months written notice
This is a deed
Executed as a deed signatures of Landlord & witness, tenant & witness
reasonable inspection
1129
TR1: Leasehold categories? (8)
Landlord and Tenant details
Definitions - property, rent and term (give details)
Demise - In consideration of the Rent and the tenant’s covenants, the Landlord demises the property to the Tenant for the Term.
Tenant's covenants eg to pay rent, to maintain repair, not to sublet, to allow reasonable inspection
Landlord's covenant - to allow quiet enjoyment
Termination details - 6 months written notice
This is a deed
Executed as a deed signatures of Landlord & witness, tenant & witness
quiet enjoyment
1130
TR1: Leasehold categories? (8)
Landlord and Tenant details
Definitions - property, rent and term (give details)
Demise - In consideration of the Rent and the tenant’s covenants, the Landlord demises the property to the Tenant for the Term.
Tenant's covenants eg to pay rent, to maintain repair, not to sublet, to allow reasonable inspection
Landlord's covenant - to allow quiet enjoyment
Termination details - ?????????
This is a deed
Executed as a deed signatures of Landlord & witness, tenant & witness
6 months written notice
1131
TR1: Leasehold categories? (8)
Landlord and Tenant details
Definitions - property, rent and term (give details)
Demise - In consideration of the Rent and the tenant’s covenants, the Landlord demises the property to the Tenant for the Term.
Tenant's covenants eg to pay rent, to maintain repair, not to sublet, to allow reasonable inspection
Landlord's covenant - to allow quiet enjoyment
Termination details - 6 months written notice
This ??????
Executed as a deed signatures of Landlord & witness, tenant & witness
is a deed
1132
TR1: Leasehold categories? (8)
Landlord and Tenant details
Definitions - property, rent and term (give details)
Demise - In consideration of the Rent and the tenant’s covenants, the Landlord demises the property to the Tenant for the Term.
Tenant's covenants eg to pay rent, to maintain repair, not to sublet, to allow reasonable inspection
Landlord's covenant - to allow quiet enjoyment
Termination details - 6 months written notice
This is a deed
?????????? - signatures of Landlord & witness, tenant & witness
Executed as a deed
