PLP LPC Complete Revision Notes 2022/23

NOTE TO READER: These notes were created for the 22/23 semester of the LPC at BPP and using these alone I got a distinction grade. They are a compilation of lecture notes, SGS solutions, practice/mock/sample papers and previous student’s legacy notes. If you wish to use them, I would recommend using them as a skeleton as you go along the course and supplementing/cross-checking with the content you learn. These are by no means exhaustive and some areas may be missing and/or lacking. Regardless, I hope they prove helpful - good luck!  FREEHOLDS NOTE: burnt orange astrix* is possible drafting question. Table of Contents PCR CONSIDERATIONS........................................................................................................3 INVESTIGATION ON TITLE / OFFICIAL COPIES......................................................................4 Planning permission, building works and change of use................................................11 SEARCHES AND INVESTIGATIONS......................................................................................15 TYPES OF SEARCHES......................................................................................................15 SEARCH RESULTS AND HOW TO RESOLVE......................................................................19 DRAFTING THE CONTRACT*..............................................................................................27 STANDARD COMMERCIAL PROPERTY CONDITIONS.......................................................28 EXCHANGE PROCEDURE...................................................................................................40 COMPLETION...................................................................................................................42 PROCEDURE..................................................................................................................42 EXECUTION CLAUSE EXAMPLES (TR1 form/purchase deed):..........................................46 AP1 FORM*...................................................................................................................47 TR1 FORM*...................................................................................................................56 ISSUES AND REMEDIES.....................................................................................................60 UNREGISTERED LAND.......................................................................................................63 PCR CONSIDERATIONS Question example: “We are acting for A. A’s child, B, lives at the property they are selling. We have been asked to act on B’s behalf in relation to leaving the property by completion and give B legal advice. Explain why we cannot do that” [this would be a client conflict of interest and neither exclusion would apply] Note: consider the principles as well in relation to the scenario: 1) Act in a way that upholds the constitutional principle of the rule of law and the proper administration of justice. 2) Act in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons. 3) Act with independence. 4) Act with honesty. 5) Act with integrity. 6) Act in a way that encourages equality, diversity and inclusion. 7) Act in the best interest of each client. 1) Issues Own interest conflict (CCS 6.1 or CCF 6.1) Client conflicts of interest (CCS 6.2 or CCF 6.2) Conflict between duties of confidentiality and disclosure (CCS/CCF 6.3 and 6.4) 2) Why is this an issue Own interest conflict (CCS 6.1 or CCF 6.1) General rule is that you are prohibited from acting for a client where there is an own interest conflict. Defined in the Glossary as “any situation where your duty to act in the best interests of any client in relation to a matter conflicts, or there is a significant risk that it may conflict, with your own interests in relation to that or a related matter” If this is the case, you must cease acting. There are no exceptions. E.g. where you are seeking to buy a house, or borrow money from, the client Client conflicts of interest (CCS 6.2 or CCF 6.2) General rule is that you are prohibited from acting for a client where there is a client conflict of interest. Defined in the Glossary as “a situation where your separate duties to act in the best interests of two or more clients in relation to the same or related matters conflict” Conflict between duties of confidentiality and disclosure (CCS/CCF 6.3 and 6.4) Under 6.3, solicitors must keep client information confidential. This continues indefinitely even after the retainer’s termination or the client’s death. Exceptions where confidentiality can be breached:  Client consents to disclosure;  Disclosure is required by law; or  Disclosure is permitted by law. Under 6.4, solicitors have a duty to disclose to a client all information which is material to the client’s matter of which the solicitor has personal knowledge. Therefore, there is clearly a conflict between these two duties which applies [insert scenario information] In order to determine if the solicitor owes a duty of disclosure: Need to establish if the information is material:  Material is not defined in the Glossary but in the 2007 Code it was information which may reasonably be expected to affect the client’s decision-making with regard to their matter in a way which is significant having regard to the matter as a whole Does the solicitor have personal knowledge?  CCF states that the duty is limited to information of which the individual solicitor is aware Exceptions to duty of disclosure under 6.4: a) The disclosure is prohibited by legal restrictions imposed in the interests of national security or prevention of crime; b) The client gives informed consent, given or evidenced in writing, tot the information being disclosed. a. Note: informed consent means the client must have some understanding of the importance of the information to their case. Any prejudice that may occur as a result of the non-disclosure. c) The Authorised Person or individual has reason to believe that serious physical or mental injury will be caused to the client or another if the information is disclosed; or d) The information is contained in a privileged document that the Authorised Person or individual has knowledge of only because it has been mistakenly disclosed. 3) How to resolve it Own interest conflict (CCS 6.1 or CCF 6.1) There are no exemptions to own conflict of interest. The solicitor is prohibited from acting for the client. Another fee earner cannot act for [conflict client 2] if you or another fee earner is acting for [conflict client 1 (original client)] on the same matter already. The provisions of the Code for Solicitors apply to ‘you, the Authorised Individual’ and the provisions of the Code for Firms apply to ‘you, the Firm’. There is a conflict of interests involving clients therefore an inability to act. So, ultimately, while you may be able to act for [conflict client 1], you will be obliged to advise [conflict client 2] to seek independent legal advice from a different firm on this transaction. Client conflicts of interest (CCS 6.2 or CCF 6.2) There are two exceptions which permit you to continue to act where there is a client conflict or a significant risk of one: 1. Under 6.2(a) where the clients have a substantially common interest (need to suffice all of the below steps (6.2(i)-(iii)); or i. All the clients have given informed consent, given or evidenced in writing to the solicitor acting; ii. Where appropriate, the solicitor has put in place effective safeguards to protect the clients’ confidential information; and iii. The solicitor is satisfied it is reasonable for them to act for all clients (i.e. is the bargaining power equal or is there no effect on acting for both sides, would it save costs? Like two partners who are setting up a business together or taking a lease as joint tenants) 2. Under 6.2(b) where the clients are competing for the same objective (as defined below with steps that need to be taken).  A CCSO is defined in the Glossary as “two or more clients who are competing for an objective which, if attained by one client, will make that objective unattainable to the other client(s)” i. Objective can be defined in the Glossary as an asset, contract or business opportunity. ii. This exception is more restricted and therefore rare. It will in general only apply where the clients are sophisticated purchasers of legal services. It is a requirement that the clients are competing against each other. iii. Example of CCSO includes acting for more than one creditor in a company’s insolvency, acting for competing bidders in an auction sale, or different tenders who are tendering for the same contract. iv. The CCSO exception does not apply where clients are on opposite sides i.e. of litigation or a transaction.  If applicable, need to suffice the following steps (6.2(i)-(iii)): i. All the clients have given informed consent, given or evidenced in writing to the solicitor acting; ii. Where appropriate, the solicitor has put in place effective safeguards to protect the clients’ confidential information; and iii. The solicitor is satisfied it is reasonable for them to act for all clients (i.e. is the bargaining power equal or is there no effect on acting for both sides, would it save costs? Like two partners who are setting up a business together or taking a lease as joint tenants) NOTE: these do not apply to own interest conflict. Another fee earner cannot act for [conflict client 2] if you or another fee earner is acting for [conflict client 1 (original client)] on the same matter already. The provisions of the Code for Solicitors apply to ‘you, the Authorised Individual’ and the provisions of the Code for Firms apply to ‘you, the Firm’. There is a conflict of interests involving clients therefore an inability to act. So, ultimately, while you may be able to act for [conflict client 1], you will be obliged to advise [conflict client 2] to seek independent legal advice from a different firm on this transaction. Conflict between duties of confidentiality and disclosure (CCS/CCF 6.3 and 6.4) You cannot rely on the duty of confidentiality to excuse failure to disclose material information. You could need to: a) Renegotiate the terms of the retainer with the client, so they are aware you have the information but cannot reveal it. They must give informed consent to this; or b) If there is a conflict of these duties that cannot be overcome by the measures permitted in 6.5(a) and (b), then the solicitor will have to refuse to act for at least one of the parties. This may need to be discussed with the supervisor or firms Compliance Officer for Legal Practice (COLP), however, you cannot disclose the specific information about the client else breach the duty of confidentiality. The firm may choose to move the file to another fee earner with no knowledge about the other client and therefore can act for this client (as under 6.4, disclosure is a personal duty), or decide that it should not act for the new client at all. INVESTIGATION ON TITLE / OFFICIAL COPIES Question example: ‘Identify and explain the issues raised by the official copies of the register and title plan [and memorandum]. Discuss what further action you could take in relation to each of those issues’. Issue: Steps: Notes/additional considerations: Property Register* *Found on the Official copy of register of title (title plan) Description of property 1. Check that the description of the land and title plan matches that of the heads of terms/contract. 2. If there is any discrepancy, will need to contact the seller’s solicitor and flag this. 3. If there is no access to the road from the property, then will need to find out who owns the land inbetween the road and property and negotiate a right of way. Right of way To and from the client’s property, which benefits the client, over third party land. Need to evaluate if the right of way is beneficial to the client or if we need to ask any questions. Three points to consider: Adequacy: 1. Buyer’s solicitor needs to report the existence of the right to the client. 2. Question any issues such as time restrictions, physical restrictions etc. If the right of way is not suitable for the client’s purposes, we will need to seek a written deed of variation of the easement which would be negotiated with the owner of the land which is burdened by the easement (the third party, not the seller). Exam tip:  Look at the documents provided (official copies, title plan, heads of terms etc) to see if there are any discrepancies or issues (issues are anything that would affect the specific client’s enjoyment of the land). Note what the client wants from the memo.  Advise the client on what the steps are that would need to be taken to address these issues/discrepancies.  If prompted, the scenario may provide documents of searches that have been carried out (LLC1, CON29, CON29O). Use these to see if any further problems or if any of the problems are now no longer an issue. Explain what this would mean to the client and what the next steps should be. Note: may be a separate question. Issue: Steps: Notes/additional considerations: 3. Suggest client check the physical adequacy of the road by a surveyor. Maintenance: 1. There is a common law duty of obligation on the person with the benefit of the right of way to pay towards the cost of repair and maintenance, even if not expressly stated. Look to see if this has been specified. 2. If not, the query needs to be raised with the seller’s solicitor to ascertain how much the seller has paid historically and how often (over the last 3 years). Report this to the client. o Note: even if the seller has not made any payments previously, the client must be warned that they may be asked to contribute in the future. 3. The survey suggested above would be useful here as it would outline any necessary maintenance works. Adoption: 1. Advise the client that private roads can be adopted by the council and made into public highways. This requires works to be carried out by the local authority to improve the quality of the road. 2. Warn the client that the cost of such works is very expensive and the repair costs to turn the road into a public highway is charged to the current owners of the land that fronts onto the private road (if the property has immediate access to the road, it will be classed as a frontage). 3. Conduct a CON29 search (see s.2 of the search results) and Highway Authority Search (see s.3) to see if adoption is being considered. Even if not, client needs to be warned that it could happen in the future especially if land nearby is developed. 4. Need to check that this road extends to a public highway. Need to check if the road that the private road adjoins to is public. This is also covered in the CON29 search (s.2). If no benefit of a right of way, this is fine as long as the property is directly next to a public highway. This can be deduced from search documents CON29 (section 2). Maintenance - CPSE.1 (s.1.6 details if it is a private road and s.3.2 notes how much contribution the seller has made) Adoption – CON29 s.2 and Highways Authority Search (s.3). Right of drainage and water (across third party land) Check to see if any further information has been provided in a deed document. Need to evaluate the same steps as above: Adequacy: If no benefit of a right of drainage and water across third party land evident in the Property register, this is not an