PLP Revision Notes
FREEHOLD - Title Investigation
Exam: What is the issue? Why is it an issue for the client? What are the solutions?
Issues:
• Right of way = AMAR (Adequacy, Maintenance, Adoption, Right of Way)
• Mortgages = must be discharged
• Positive covenants
• Restrictive covenants
• Planning issues (PP, BRs, LBC, CA)
• Other issues (Contamination, river, chancel repair)
• Sale by sole-surviving TiC
• Discrepancies in proprietorship reg
• Third party interests
• Excluded rights
PROPERTY REGISTER
Right of way – needed if property does not abut public highway (avoid being landlocked)
• ALWAYS go through AMAR -> be sure to reference documents
Adequate? Check Property Register – is the RoW sufficient for the client’s needs?
• Can the client access the property via the RoW
o By all means of access required (e.g. by motor vehicles as well as on foot,
‘with or without vehicles?)
o At the times it wants (e.g. Day or Night/ not before 7am / at ‘all reasonable
times’ / only on weekend) = e.g. after 8am would be inadequate if restaurant
needed morning deliveries
o Free from any other unacceptable restrictions or conditions?
• Physical adequacy (size, location, construction) = is it adequate physically for client’s
needs?
o Client should consider instructing a surveyor to analyse it and assess the
suitability of RoW
• If not adequate, solution
o Ask seller if it has encountered any problems exercising RoW
o To amend RoW, client would need to negotiate a Deed of Variation with the
owner of burdened remove relevant restrictions (e.g. amend it to be ‘at all
times’ rather than ‘at all reasonable times’)
o However = client likely to have to pay owner consideration for such a deed
(+ legal costs) and no guarantee that the owner would agree to the deed on
terms acceptable to client
1
, o If Deed of Variation is a ‘deal breaker’, client would need to secure binding
commitment from owner of burdened land to grant deed before exchange
of contracts
Maintenance liability? Check the Property Register, CPSEs
• What does easement say?
o Issue = Enjoyment of the benefit of RoW likely to be subject to contributing
fair proportion towards repairing and maintenance costs
o To determine ‘fair proportion’, common practice to ask seller’s solicitor for 3
years of previous payments (ask in the CPSE) but may need to go back
further if no recent history
§ If silent, there is still liability under common law as there is a duty to
contribute to reasonable maintenance if using another’s land (say
this)
• Solution - inform client / make further enquiries?
o If CPSE (3.2(f)) states that seller has not been required to contribute to
maintenance, ask seller to follow this up with owner of RoW and ask how
‘fair proportion’ was calculated, how it would now be calculated, whether
maintenance works are planned and likely costs
o Indicates whether road is private (but double check that it is not mentioned
in CON 29)
o Should ensure client surveyor checks condition of RoW to establish if
maintenance needed = if in poor state, client will want to know likely
contribution before committing to purchase
Adoption? If private road, may be potential future costs if LA chooses to ‘adopt’ private
road and turn it into a public highway
• Is the right of way adopted? Check the CON29 / CPSEs
• Are there plans to adopt? see CON29 (2.1(c))
• This indicates whether the road is a public highway and what the current plans of
LAs are
• Warn client about future costs if adopted (owners of property fronting the road
[frontagers] will have to pay to bring road up to an adoptable standard)
o ‘Even though no plans to adopt, warn client that LA could adopt in the future
which may put [client] at risk of being obliged to pay for the ‘making up’ costs
of the road’
o After adoption and frontage costs, the client will save on ongoing
maintenance costs
Registration – the burden of the RoW needs to be registered on the servient land (on CR) to
be enforceable
• Need to check CHARGES register of burdened land
• SIMR search – reveals land is registered with title number XXX
• If servient land is registered, get official copy of burdened land’s title to ensure RoW
has already been registered in its CR
2
FREEHOLD - Title Investigation
Exam: What is the issue? Why is it an issue for the client? What are the solutions?
Issues:
• Right of way = AMAR (Adequacy, Maintenance, Adoption, Right of Way)
• Mortgages = must be discharged
• Positive covenants
• Restrictive covenants
• Planning issues (PP, BRs, LBC, CA)
• Other issues (Contamination, river, chancel repair)
• Sale by sole-surviving TiC
• Discrepancies in proprietorship reg
• Third party interests
• Excluded rights
PROPERTY REGISTER
Right of way – needed if property does not abut public highway (avoid being landlocked)
• ALWAYS go through AMAR -> be sure to reference documents
Adequate? Check Property Register – is the RoW sufficient for the client’s needs?
• Can the client access the property via the RoW
o By all means of access required (e.g. by motor vehicles as well as on foot,
‘with or without vehicles?)
o At the times it wants (e.g. Day or Night/ not before 7am / at ‘all reasonable
times’ / only on weekend) = e.g. after 8am would be inadequate if restaurant
needed morning deliveries
o Free from any other unacceptable restrictions or conditions?
• Physical adequacy (size, location, construction) = is it adequate physically for client’s
needs?
o Client should consider instructing a surveyor to analyse it and assess the
suitability of RoW
• If not adequate, solution
o Ask seller if it has encountered any problems exercising RoW
o To amend RoW, client would need to negotiate a Deed of Variation with the
owner of burdened remove relevant restrictions (e.g. amend it to be ‘at all
times’ rather than ‘at all reasonable times’)
o However = client likely to have to pay owner consideration for such a deed
(+ legal costs) and no guarantee that the owner would agree to the deed on
terms acceptable to client
1
, o If Deed of Variation is a ‘deal breaker’, client would need to secure binding
commitment from owner of burdened land to grant deed before exchange
of contracts
Maintenance liability? Check the Property Register, CPSEs
• What does easement say?
o Issue = Enjoyment of the benefit of RoW likely to be subject to contributing
fair proportion towards repairing and maintenance costs
o To determine ‘fair proportion’, common practice to ask seller’s solicitor for 3
years of previous payments (ask in the CPSE) but may need to go back
further if no recent history
§ If silent, there is still liability under common law as there is a duty to
contribute to reasonable maintenance if using another’s land (say
this)
• Solution - inform client / make further enquiries?
o If CPSE (3.2(f)) states that seller has not been required to contribute to
maintenance, ask seller to follow this up with owner of RoW and ask how
‘fair proportion’ was calculated, how it would now be calculated, whether
maintenance works are planned and likely costs
o Indicates whether road is private (but double check that it is not mentioned
in CON 29)
o Should ensure client surveyor checks condition of RoW to establish if
maintenance needed = if in poor state, client will want to know likely
contribution before committing to purchase
Adoption? If private road, may be potential future costs if LA chooses to ‘adopt’ private
road and turn it into a public highway
• Is the right of way adopted? Check the CON29 / CPSEs
• Are there plans to adopt? see CON29 (2.1(c))
• This indicates whether the road is a public highway and what the current plans of
LAs are
• Warn client about future costs if adopted (owners of property fronting the road
[frontagers] will have to pay to bring road up to an adoptable standard)
o ‘Even though no plans to adopt, warn client that LA could adopt in the future
which may put [client] at risk of being obliged to pay for the ‘making up’ costs
of the road’
o After adoption and frontage costs, the client will save on ongoing
maintenance costs
Registration – the burden of the RoW needs to be registered on the servient land (on CR) to
be enforceable
• Need to check CHARGES register of burdened land
• SIMR search – reveals land is registered with title number XXX
• If servient land is registered, get official copy of burdened land’s title to ensure RoW
has already been registered in its CR
2
