A concise summary of the Property Law & Practice module on the LPC at Nottingham Law School. It covers all the topics on the module, including, but not limited to commercial leases, money laundering, SDLT, planning permission and business tenancies. The notes are organised in an easy to read format...
EXAM TIPS/STRATEGY
1. Identify the issue/problem
2. Explain why it is a problem – using relevant authorities
3. State what you are going to do next (i.e. apply answer to the scenario)
• For lease questions, cite the correct clause and sub clause and identify the effect of the clause
• Know the Case study 3 lease inside and out
• Know when VAT is payable
• Use diagrams to help with lease questions
KEY POINTS
• Contract of sale of land or other interest in land must be in writing and must incorporate the express
terms the parties have agreed to – s.2(1) LP(MP)A 1925
• The BURDEN of a POSITIVE COVENANT will NOT pass
o Solution is to use a chain of indemnity/ get indemnity insurance
o E.g. Covenant ‘not to let house fall into disrepair’ is a POSITIVE covenant
• The BURDEN of a RESTRICTIVE COVENANT will PASS ONLY IF the buyer knows about it
• Burden of a covenant is on the buyer
• Standard Conditions of Sale (SCS) apply to any type of land transaction – usually residential
• Deed (aka a transfer) is required to transfer legal estate from seller to buyer – s.52 LPA 1925
o Must state that it is a deed AND be validly executed – s.1 LP(MP)A 1089
o Usually drafted by the seller’s solicitors
o Comes into force when it is delivered
• Seller sells the property FREE from incumbrances other than those:
• specified in the contract;
• discoverable by inspection of the property BEFORE the date of the contract;
• the seller does NOT and could NOT reasonably know about;
• matter, other than mortgages, disclosed or which would have been disclosed by searches and
enquiries which a prudent buyer would have made before entering into the contract;
• public requirements
Auth: SCPC 4.1.2/SCS 3.1.2
• 2 types of title guarantee:
1. Full title guarantee – seller guarantees that there are no financial charges/encumbrances or 3rd
party rights which affect the problem other than those they have already revealed – this is the best
kind
2. Limited title guarantee – usually given when the landlord doesn’t know much about the property
(e.g. banks give this when they sell a property they have repossessed)
• Completion date is 20 WORKING DAYS AFTER the date of the contract
• Time is NOT of the essence of the contract UNLESS a notice to complete has been served – SCS
6.1.1/SCPC9.1.1
• Common Land Charges in an unregistered system
o Class D(ii) – restrictive covenants created 1925
o Class C(iv) – estate contracts (i.e. agreement for sale or and unexercised option)
o Class C(i) – 2nd and other subsequent legal mortgages; and
o Class F – home rights
• Overreaching only applies to equitable interest and tenancies in common
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, • 2 types of notice:
o Unilateral notice – entered on the register without the consent of the registered proprietor
o Agreed notice – enter with consent of registered proprietor
• Legal estate remains with the seller until the transaction is completed
• Epitome of title – list of all deeds + documents relating to the title and photocopies of them are
attached
METHODS OF EXCHANGE:
1. In Person – least common
2. Postal exchange/document exchange
3. Telephone Exchange (Law society has 3 formulae) – most common
• Relies on each solicitor giving an undertaking
• Telephone exchange occurs at the point in conversation where solicitors agree that exchange has
occurred – date, time and formula of exchange is entered into contract
a. Formula A – used when 1 solicitor holds both parts of the signed contract (relies on post)
o Solicitor undertakes to forward other party their contract that day by 1 st class post/doc
exchange
b. Formula B – used when each solicitor holds their own part of the contract (exchanges occurs
instantaneously)
c. Formula C – used for when there is a chain of transactions
o cannot be held over until the next day
PROCEDURE FOR DISCHARGING OF A MORTGAGE
1. Get seller’s solicitor to give undertaking to discharge mortgage on or before completion; and
2. give evidence of discharge on completion – Form DS1/Electronic Discharge/E-DS1
REMEDIES
• Time of the essence – means that any delay on completing the contract can lead to the contract being
terminated
• Generally, time is NOT of the essence unless a notice to complete has been served – SCS 6.1.1/SCPC
9.1.1.
• Parties must complete contract within 10 WORKING DAYS (excluding the day the notice is given) of
receiving a notice to complete otherwise time becomes of the essence and a party can rescind the
contract – SCS 6.8.1/ SCPC 9.8.2
• CAN’T serve a notice to complete until ‘on or after completion’
• Consequences of failing to comply with a notice to complete:
o Innocent party can:
treat the contract as discharged,
sue for damages; and
keep the buyers deposit
• SCS 7.1 & 7.2 outline the remedies for errors, omission and late completion
• Answers to preliminary enquiries of the seller are a common course for misrepresentation
• Seller cannot avoid liability for misrepresentation by using a disclaimer or responding by saying ‘not so
far as aware’
• William Sindall plc v Cambridgeshire County Council 1994 – held that the answer ‘not so far as the
vendor is aware’ means the vendor and its solicitor had not actual knowledge of a defect AND they
made reasonable investigations
• Walker v Boyle [1982] - Disclaimers on replies to preliminary enquiries are NOT effective to prevent
the answers from being representations of fact
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