Comprehensive Property law and Practice notes

, FREEHOLD — INVESTIGATING THE PROPERTY:
INVESTIGATING TITLE AND PRE-CONTRACT ENQUIRIES
EXAM TECHNIQUE:
IDENTIFY the potential issues; ‘what is the issue ?’

EXPLAIN Why those issues could cause a problem for your client - ‘why is it an
issue ?’; and

SOLVE Provide options for the clients and recommend the most appropriate -
‘resolve the issue’.


Using the technique above run through the checklist for potential issue:



NOTE

When acting for the buyer — the seller’s solicitor will deduce the title to the property
and send to the buyers solicitor - The duty of the buyers solicitor is to investigate and
raise queries on the Title to the property.

The buyers solicitor investigates the title with replies to The CPSE.1 (Commercial
Property Standard Enquiries) which are general pre-contract enquiries used for all
commercial property transactions on which the seller’ solicitors answers the buyers
solicitor enquiries. Buyers will frequently receive replies to CPSEs at the same time
they receive the official copies and before they start any searches USE CPSE in
conjunction with official copies

The title to the registered land consist of three main documents - The official
Copies of the register, title plan; and copies of any documents referred to in the official
copies of the register. -

The Official copies consists of three separate registers:
• Property Register: Describes the land and the estate comprised in the title. It details
the location and gives a brief description of the property. It may include reference to
rights that benefit the property , such as legal easements
• Proprietorship Register: The Proprietorship Register records the class of the title,
for example absolute or limited title. It identifies the owner of the property, giving
details such as their name and address. It shows whether there are restrictions on the
power to sell the property.
• Charges Register: lists “charges” and other matters burdening the property i.e.
third party rights over the property.

Analyse each of these registers to identify issues with the property.

, THE PROPERTY REGISTER
Is it as the client was expecting ? - ensure that the
1) DESCRIPTION OF boundaries correspond with the buyer’s understanding
LAND of the size/location of the land in question - use the title
plan


2) EASEMENTS Firstly look at the title plan and identify the road used to
BENEFITING THE access the property, then consider the following —
PROPERTY
• Does the property abut a public highway ? — carry out a
CON 29 search to check that the adjoining road used to
access the property is public and a Highways Search to
check that they directly abut the property — The CPSE
will also confirm if the access to the property is by
private right of way.

• If the adjoining road used to access the property is not a
public highway - then a right of way over the privately
owned access road will be apparent from the property
register — If there is a right of way - consider the
following:



AEQUACY You need to check if the terms of the right of way is adequate for
the client's given its proposed use of land
• Is the roadway free from any restrictions or conditions both in
terms of when it can be used (‘day or night’) and the means of
access (‘with or without vehicles’) and does the roadway connect
the property to a public highway ?

• is the roadway physically adequate in terms of its size, location
and construction.

If the terms of the right of way is inadequate for a clients proposed
use of the property, the client would need to negotiate a deed of
variation of the easement with the owner of the land burdened by
the right of way. The client is likely to have to pay the owner of the
burdened land consideration for any such deed of variation as well
as their legal costs. In addition, there is no guarantee that the owner
the burdened land would agree to a deed of variation on terms that
are acceptable to the client.

, So, if from the clients perspective the need for a deed of variation is
a ‘deal-breaker’, the client would need to secure a binding
commitment from the owner of the burdened land to grant any
deed of variation before the client exchanges contracts with the
seller.

Does the right of way connect to a public highway ? — Carry out
a Highways Search to check to see if the right of way abuts the
public highway.

Physical adequacy — Ask the buyers surveyor or the buyer whether
the right of way is physically adequate for buyers’ intended purpose
(e.g. the width of the access-way and its physical condition).

REGISTRATION We need to check that the burden of the right of way will bind the
burdened land, otherwise the client will not be able to exercise the
benefit of the right of way — to do this we need to check if the
burden of the right of way is registered as a burden on the Charges
Register of title of the burdened land.
• To do this carry out a search of the index map ("SIM") or check if a
SIM search has been provided by the seller. A SIM search will
reveal the title number of the land and any neighbouring land.

• When you get the title number of the burdened land obtain the
official copies and check that the burden of the right of way is
registered on the Charges Register of the burdened land - (if SIM
search shows that the land is registered).

• If SIM search shows that the land is unregistered check that there
is a caution against first registration over the burdens property.

If the burden of the right of way is not registered, include a special
condition in the the contract requiring the seller to do so.

MAINTENANCE Check what the buyers liability would be in relation to the
maintenance of the right of way - Consider the seller’s replies to
CPSE 3.2 (c) and (f).

If such lability exists, ask the seller for details of the costs it incurred
for the past three years in maintaining the access-way.

If there is no such history because the seller acquired the property
recently ask to see the replies to enquiries the seller received when
it bought the Property and check the maintenance obligations
contained in there.