PROPERTY LAW & PRACTICE: SGS 1-6: REVISION SUMMARY
OVERVIEW OF THE CONVEYANCING TRANSACTION
(1) Pre-Contract to Exchange of Contracts
- Seller’s Solicitors – Must:
(a) take instructions + obtains details/copies of legal title;
(b) draft contract of sale + send to B’s solicitors;
(c) respond to pre-contract searches and enquiries;
(d) send relevant documentation to B’s solicitor; and
(e) take instructions as to completion date + receive deposit + exchange contracts.
- Buyer’s Solicitors – Must:
(a) take instructions + check S’s title to property;
(b) report to seller + ensure that seller has adequate funding;
(c) conduct pre-contract searches and enquiries;
(d) approve draft contract of sale;
(e) take instructions on completion date + send deposit to S’s solicitor + exchange contracts.
(2) Post-Exchange to Completion
- Seller’s Solicitors – Must:
(a) obtain details of amount required to discharge existing mortgage;
(b) approve deed of Transfer + arrange for execution of Transfer by seller;
(c) reply to Completion Information and Undertakings Form;
(d) undertake to send redemption sum to seller’s mortgagee + forward discharge documentation to B’s solicitor; and
(e) receive balance from B’s solicitor and date Transfer on completion.
- Buyer’s Solicitors – Must:
(a) draft Transfer + send to S’s solicitor for approval/execution;
(b) send Completion Information & Undertakings Form to S’s solicitor;
(c) request mortgage funds from P’s mortgagee;
(d) request balance of purchase price + other fees/taxes/charged from B (e.g. SDLT/Land Registry Fees);
(e) conduct pre-completion searches;
(f) arrange execution of Transfer by B; and
(g) send balance of purchase price to S’s solicitor’s client account.
(3) Post-Completion
- Seller’s Solicitors – Must:
(a) send dated Transfer + relevant documents to B’s solicitors;
(b) send amount required to discharge S’s mortgage to S’s mortgagee + obtain DS1 discharge form;
(c) transfer balance of purchase price to seller;
(d) send executed copy of DS1 discharge form to B’s solicitor immediately upon receipt from S’s mortgagee.
- Buyer’s Solicitor – Must:
(a) receive executed Transfer from S’s solicitor;
(b) send applicable SDLT charge to HMRC;
(c) if B is a company, register any charge over the property with Companies House;
(d) apply to register discharge of S’s mortgage + transfer of legal title + creation of S’s mortgage at Land Registry.
(4) Positive and Restrictive Covenants
- Positive Covenants – CANNOT bind the land + ONLY bind parties to the original covenant who remain bound by
the terms of the covenant even after they have disposed of property to which covenant relates.
- Breach of positive covenant creates cause of action against original covenantor NOT current owner of property
who actually commits the breach.
- Positive covenants made to run with the land in practice if not in law through the use of INDEMNITY
COVENANTS so that covenantor’s successors in title covenant to comply with the original covenant AND to
indemnify the original covenantor should the latter be faced be with action for breach of covenant committed by his
successor in title.
- Restrictive Covenants – Operate doubly in rem as BOTH the burden and the benefit of the restrictive covenant runs
with the land provided that they are genuinely restrictive in nature (Tulk v Moxhay (1848)).
- Unregistered Land – Registered as Class D(ii) Land Charge on Central Land Charges Register.
- Registered Land – Registered on Charges Register of the servient property.
- LPA 1925 s.62: Transfer with Existing Benefits – Property sold with benefits of all rights of way/easements etc.
attaching to the property at the time of transfer, either expressly or by implication.
- Wheeldon v Burrows (1879) – Seller disposing of PART of property may inadvertently convey rights over retained
land for benefit of land being sold UNLESS there is express provision to the contrary in the deed of conveyance.
- Court of Appeal: Thesiger LJ – Grant of part of land includes grant of all continuous/apparent easements IN
USE AT TIME OF TRANSFER + all easements NECESSARY FOR THE REASONABLE ENJOYMENT OF
THE PROPERTY as it is then used/enjoyed for benefit of the part of the land being transferred.
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OVERVIEW OF THE CONVEYANCING TRANSACTION
(1) Pre-Contract to Exchange of Contracts
- Seller’s Solicitors – Must:
(a) take instructions + obtains details/copies of legal title;
(b) draft contract of sale + send to B’s solicitors;
(c) respond to pre-contract searches and enquiries;
(d) send relevant documentation to B’s solicitor; and
(e) take instructions as to completion date + receive deposit + exchange contracts.
- Buyer’s Solicitors – Must:
(a) take instructions + check S’s title to property;
(b) report to seller + ensure that seller has adequate funding;
(c) conduct pre-contract searches and enquiries;
(d) approve draft contract of sale;
(e) take instructions on completion date + send deposit to S’s solicitor + exchange contracts.
(2) Post-Exchange to Completion
- Seller’s Solicitors – Must:
(a) obtain details of amount required to discharge existing mortgage;
(b) approve deed of Transfer + arrange for execution of Transfer by seller;
(c) reply to Completion Information and Undertakings Form;
(d) undertake to send redemption sum to seller’s mortgagee + forward discharge documentation to B’s solicitor; and
(e) receive balance from B’s solicitor and date Transfer on completion.
- Buyer’s Solicitors – Must:
(a) draft Transfer + send to S’s solicitor for approval/execution;
(b) send Completion Information & Undertakings Form to S’s solicitor;
(c) request mortgage funds from P’s mortgagee;
(d) request balance of purchase price + other fees/taxes/charged from B (e.g. SDLT/Land Registry Fees);
(e) conduct pre-completion searches;
(f) arrange execution of Transfer by B; and
(g) send balance of purchase price to S’s solicitor’s client account.
(3) Post-Completion
- Seller’s Solicitors – Must:
(a) send dated Transfer + relevant documents to B’s solicitors;
(b) send amount required to discharge S’s mortgage to S’s mortgagee + obtain DS1 discharge form;
(c) transfer balance of purchase price to seller;
(d) send executed copy of DS1 discharge form to B’s solicitor immediately upon receipt from S’s mortgagee.
- Buyer’s Solicitor – Must:
(a) receive executed Transfer from S’s solicitor;
(b) send applicable SDLT charge to HMRC;
(c) if B is a company, register any charge over the property with Companies House;
(d) apply to register discharge of S’s mortgage + transfer of legal title + creation of S’s mortgage at Land Registry.
(4) Positive and Restrictive Covenants
- Positive Covenants – CANNOT bind the land + ONLY bind parties to the original covenant who remain bound by
the terms of the covenant even after they have disposed of property to which covenant relates.
- Breach of positive covenant creates cause of action against original covenantor NOT current owner of property
who actually commits the breach.
- Positive covenants made to run with the land in practice if not in law through the use of INDEMNITY
COVENANTS so that covenantor’s successors in title covenant to comply with the original covenant AND to
indemnify the original covenantor should the latter be faced be with action for breach of covenant committed by his
successor in title.
- Restrictive Covenants – Operate doubly in rem as BOTH the burden and the benefit of the restrictive covenant runs
with the land provided that they are genuinely restrictive in nature (Tulk v Moxhay (1848)).
- Unregistered Land – Registered as Class D(ii) Land Charge on Central Land Charges Register.
- Registered Land – Registered on Charges Register of the servient property.
- LPA 1925 s.62: Transfer with Existing Benefits – Property sold with benefits of all rights of way/easements etc.
attaching to the property at the time of transfer, either expressly or by implication.
- Wheeldon v Burrows (1879) – Seller disposing of PART of property may inadvertently convey rights over retained
land for benefit of land being sold UNLESS there is express provision to the contrary in the deed of conveyance.
- Court of Appeal: Thesiger LJ – Grant of part of land includes grant of all continuous/apparent easements IN
USE AT TIME OF TRANSFER + all easements NECESSARY FOR THE REASONABLE ENJOYMENT OF
THE PROPERTY as it is then used/enjoyed for benefit of the part of the land being transferred.
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