LPC SUMMARY
PLP
REVISION NOTES
2020
1
,Title Investigation
What is the issue?
Why is it an issue to client?
Resolve the issue
1.1 Right of way
1. Adequacy
a. Means – vehicles
b. Time – between hours of…
c. Physical adequacy – wide / high enough for client’s use: suggest that
they instruct a surveyor to take a look at it
d. Solution = Deed of variation entered into with the owner of the
burdened land. He may say no, but will more likely ask for
payment to vary.
2. Maintenance
a. What does the easement say?
b. CPSEs (questions to seller) – ask how much seller has contributed (in
last 3 years)
i. If CPSEs state how much has been contributed, report this to
the client;
ii. If not, make further enquiries of seller
c. If nothing in easement – there is a common law liability to pay
towards its reasonable maintenance
3. Adoption
a. Check CON 29 (doc 52 EH pack) – Box C => gives roads to be
searched; result 2.1(a) = which roads are public
b. Plans to adopt – Y/N (drawn out in Local Authority answers to default
CON29 questions)
c. Warn that could be adopted in future + would have to bring up
to the adopted standard, incurring costs
4. Registration
a. Must be registered on the charges register of the burdened land
b. SIM search of relevant area + will bring back registered properties within
land searched => allows us to find out title number
c. If registered, check appropriate title number official copy – charges
register
d. If unregistered, apply to the Land Registry for a caution against first
registration, whereby the land registry will enter the charge when the
land is registered
1.2 Public Right of Way
Found on CON29 – impeding is a criminal offence + must therefore consider if
this hinders buyer’s plans for property + make client aware
2
,Covenants
2 Positive Covenant
IDENTIFY – Check charges register for positive covenants
Check to see if this is in breach
Positive covenants – burden does not run with the land
Therefore, look to proprietorship register (as indemnity covenant is between
people,
i.e. buyer and seller) = indemnity covenant – in which case the positive
covenant will be contractually enforceable as…
o Buyer will therefore also be required to enter into an indemnity
covenant and will be liable for any breach of the PC
FUTURE BREACH – warn client of potential liability
PAST BREACH SOLUTIONS:
o Require the seller to do something to adhere to the positive covenant,
as a condition to the contract
o If not possible to remedy – seek price reduction:
Indemnity insurance (which runs with the land), either by
seller or buyer (NB mention s 19(1) FSMA)
Consent from the PWB
3
, #3 Restrictive covenant
Mention there is an RC at (X) of Charges Register, stating…
Breach
o Past / Continuing breach
o Future breach
SOLUTIONS:
o Restrictive covenant insurance, which is a one-off payment, which runs
with the land + you are likely to get a better premium if:
The breach is an old breach with no action taken, as opposed
to a recent or future breach
The covenant is old, as action is less likely to be taken, you will
get a better premium
Insurance unlikely to be able to be obtained where past consent
from PwB, tipping them off to existence of covenant(s)
If there has been a past breach, will likely be able to get the
seller to pay, or at least split payment
This is the best option in general + the seller getting the
insurance is often made a condition of the contract where there
is a past breach
However, as advice related to insurance, we must comply with
FSMA 2000, s 19(1), in the giving of advice related to
insurance.
o Retrospective consent / release from the covenant FROM PwB
It is much less likely that we will be able to get insurance
once we have alerted the PwB of our current or future breach,
so should seek insurance first
If the insurance is prohibitively expensive = seek consent
Possible outcomes:
Could say no
Could say yes but charge
They may be untraceable, or difficult to trace
o Upper Tribunal (Lands Chamber) to have the covenant discharged as
being obsolete – only for intention to breach in future
Expensive, time consuming and no guarantee of success
#4 Mortgage
(NB appear on official copies as restriction in proprietorship register + 2 entries in charges register)
Purchaser does not want to take subject to the mortgage so we must make sure
that the mortgage is discharged
We will not require the mortgagees consent provided there is a complete sale
of the whole of the land and the whole mortgage is discharged
We will prior to completion obtain an undertaking from the seller’s solicitor
to transfer funds to the lender sufficient to discharge the mortgage + to
send us the DS1 following discharge
4
PLP
REVISION NOTES
2020
1
,Title Investigation
What is the issue?
Why is it an issue to client?
Resolve the issue
1.1 Right of way
1. Adequacy
a. Means – vehicles
b. Time – between hours of…
c. Physical adequacy – wide / high enough for client’s use: suggest that
they instruct a surveyor to take a look at it
d. Solution = Deed of variation entered into with the owner of the
burdened land. He may say no, but will more likely ask for
payment to vary.
2. Maintenance
a. What does the easement say?
b. CPSEs (questions to seller) – ask how much seller has contributed (in
last 3 years)
i. If CPSEs state how much has been contributed, report this to
the client;
ii. If not, make further enquiries of seller
c. If nothing in easement – there is a common law liability to pay
towards its reasonable maintenance
3. Adoption
a. Check CON 29 (doc 52 EH pack) – Box C => gives roads to be
searched; result 2.1(a) = which roads are public
b. Plans to adopt – Y/N (drawn out in Local Authority answers to default
CON29 questions)
c. Warn that could be adopted in future + would have to bring up
to the adopted standard, incurring costs
4. Registration
a. Must be registered on the charges register of the burdened land
b. SIM search of relevant area + will bring back registered properties within
land searched => allows us to find out title number
c. If registered, check appropriate title number official copy – charges
register
d. If unregistered, apply to the Land Registry for a caution against first
registration, whereby the land registry will enter the charge when the
land is registered
1.2 Public Right of Way
Found on CON29 – impeding is a criminal offence + must therefore consider if
this hinders buyer’s plans for property + make client aware
2
,Covenants
2 Positive Covenant
IDENTIFY – Check charges register for positive covenants
Check to see if this is in breach
Positive covenants – burden does not run with the land
Therefore, look to proprietorship register (as indemnity covenant is between
people,
i.e. buyer and seller) = indemnity covenant – in which case the positive
covenant will be contractually enforceable as…
o Buyer will therefore also be required to enter into an indemnity
covenant and will be liable for any breach of the PC
FUTURE BREACH – warn client of potential liability
PAST BREACH SOLUTIONS:
o Require the seller to do something to adhere to the positive covenant,
as a condition to the contract
o If not possible to remedy – seek price reduction:
Indemnity insurance (which runs with the land), either by
seller or buyer (NB mention s 19(1) FSMA)
Consent from the PWB
3
, #3 Restrictive covenant
Mention there is an RC at (X) of Charges Register, stating…
Breach
o Past / Continuing breach
o Future breach
SOLUTIONS:
o Restrictive covenant insurance, which is a one-off payment, which runs
with the land + you are likely to get a better premium if:
The breach is an old breach with no action taken, as opposed
to a recent or future breach
The covenant is old, as action is less likely to be taken, you will
get a better premium
Insurance unlikely to be able to be obtained where past consent
from PwB, tipping them off to existence of covenant(s)
If there has been a past breach, will likely be able to get the
seller to pay, or at least split payment
This is the best option in general + the seller getting the
insurance is often made a condition of the contract where there
is a past breach
However, as advice related to insurance, we must comply with
FSMA 2000, s 19(1), in the giving of advice related to
insurance.
o Retrospective consent / release from the covenant FROM PwB
It is much less likely that we will be able to get insurance
once we have alerted the PwB of our current or future breach,
so should seek insurance first
If the insurance is prohibitively expensive = seek consent
Possible outcomes:
Could say no
Could say yes but charge
They may be untraceable, or difficult to trace
o Upper Tribunal (Lands Chamber) to have the covenant discharged as
being obsolete – only for intention to breach in future
Expensive, time consuming and no guarantee of success
#4 Mortgage
(NB appear on official copies as restriction in proprietorship register + 2 entries in charges register)
Purchaser does not want to take subject to the mortgage so we must make sure
that the mortgage is discharged
We will not require the mortgagees consent provided there is a complete sale
of the whole of the land and the whole mortgage is discharged
We will prior to completion obtain an undertaking from the seller’s solicitor
to transfer funds to the lender sufficient to discharge the mortgage + to
send us the DS1 following discharge
4
