PROPERT LAW
AND PRACTICE
, CONTENTS PAGE
ACTING FOR SELLER & BUYER 1
2-3
ACTING FOR BORROWER & LENDER
MONEY LAUNDERING REGULATIONS 2017 4
INSURANCE – FSMA 5
TAX (SDLT, VAT) 6-7
PLANNING PERMISSION – BUILDING WORKS 9-10
PLANNING PERMISSION – CHANGE OF USE 10 -11
PLANNING PERMISSION – LISTED BUILDING CONSENT 11
PLANNING PERMISSION – CONSERVATION AREA 12
ENVIRONMENTAL LAW 12
PLANNING PERMISSION ENFORCEMENT PERIOD 13
PROPERTY REGISTER 15
PROPRITORSHIP REGISTER 17
CHARGES REGISTER 20
PRE-CONTRACT SEARCHES + ENQUIRES 26
DRAFTING THE CONTRACT 31
PRE-EXCHANGE STEPS 34
PRE-COMPLETION STEPS 38
DRAFTING THE TR1 41
COMPLETION STEPS 43
POST COMPLETION STEPS 43
REMEDIES FOR DELAYES COMPLETION 45
LEASEHOLD PROCEDURE 50
GRANT OF A LEASE 53
GRANT OF AN ASSIGNMENT 54
GRANT OF AN UNDERLEASE 55
CONCERNS OF ALIENATION 56
FOUR L’S - ALIENTATION 58
ALIENATION LICENCES 59
ALTERATIONS 60
CHANGE OF USE 63
SECURITY OF TENURE 66
REPAIR PORVISIONS 74
INSURANCE/RENT SUSPENSION 76
RENT REVIEW 78
1
, CONDUCT, PRELIMINARY, PLANNING
PERMISSION
CONDUCT ACTING FOR SELLER & BUYER
• Principle 4: separate duties to act in the best interest of each client
• O3.5: cannot act where there is a client conflict (see conduct notes) or a significant risk
of a client conflict
GENERAL RULE § Apply to the facts; there is a conflict here because the buyer will want the lowest
price for the property and the seller will want to get the highest price for it
• There are two main exceptions
1. O3.3 identifies some relevant circumstances:
a) Clients have different interests (such as the best price)
WHETHER CONFLICT b) Whether the client is vulnerable or imbalance of bargaining powers
OF SIGNIFICANT RISK c) A need to negotiate between terms
OF ONE d) Solicitor’s ability to give independent advice will be fettered
2. The following will tend not to achieve O3.5 (therefore, conflict)
a) IB3.3: acting where matters of substance are being negotiated (such as price)
b) IB3.14: acting for the buyer and seller in a transfer of land for
value/grant/assignment of a lease
3. Consider whether buyer and seller are related or associated companies
• If so, may not be a conflict (check facts carefully)
• O3.6 states that you can act if there is a substantially common interest (see conduct
notes). This could apply where:
SUBSTANTIALLY § The property is being gifted, or
COMMON INTEREST § Purchase on developer’s standard terms (but watch out for imbalance of bargaining
power IB3.4)
• Generally not applicable as each party wants the best price for the transaction; IB3.11
O3.7 is never relevant (parties are not competing)
• Always apply it to the facts & consider whether a conflict could arise in the transaction
• Decision is ultimately the solicitor’s to make
CONCLUDE • Consider age of the seller/buyer, bargaining power, mental capacity, history of purchases,
undue influence
• Not many firms will act for both in commercial transactions
2
, ACTING FOR BORROWER & LENDER – CONFLICT OF INTEREST
GENERAL RULE Although a duty is owed to ‘act in the best interest of each client’ (SRA Principle 7) a solicitor
may act for both the borrower and the lender if they are ‘competing for the same
objective’(CCS 6.2.(a)) or that they ‘share a substantially common interest’(CCS 6.2(a)). A
solicitor may not act for both if there is a conflict of interest or a significant risk of one
arising (CCS 6.2).
WHETHER CONFLICT SRA glossary states that a conflict of interest is:
OF SIGNIFICANT RISK § ‘A situation where your separate duties to act in the best interest of two or more clients in
OF ONE the same or related matter conflict’
• E.G.: The terms of the mortgage are negotiable and the buyer wants a cheap and flexible
mortgage whereas the lender wants profitability and good security. This is an example of
conflict would occur.
•
SRA Glossary defines a ‘substantially common interest as ‘a situation where there is a clear
common purpose between the clients and a strong consensus on how it is to be achieved’
If the exception is established, then put in safeguards:
EXCEPTION 1
CCS 6.2:
SUBSTANTIALLY • All clients provide informed consent in writing
COMMON INTEREST • Establish safeguards to protect clients confidential information
• You are satisfied that it is reasonable for you to act for all the clients
•
EXCEPTION 2 SRA Glossary :
COMPTETING FOR THE This exception applies when two or more clients are competing for an "objective" which,
if attained by one client, will make that "objective" unattainable to the other client or
SAME OBJECTIVE
clients
This may be the case, for example, where two or more clients instruct you to act for them as
competing bidders and/or those involved with the funding of bidders in respect of the sale of a
business being sold through a structured auction process.
"Objective" may mean an asset, a contract or business opportunity which two or more
clients want to acquire or recover through a liquidation (or some other form of insolvency
process). It could also be by means of an auction or a tender process or a bid or an offer, but
not a public takeover.
Examples of where this exception might apply.
• Acting for more than one creditor on the insolvency of a company
• Acting for competing bidders for a business being sold by auction
• Acting for different tenderers tendering for the same contract
EXAM TIP: Students forget that you have to be competing against each other e.g.: whilst
a lender and a borrower have a similar objective here they are NOT COMPETING for the
same objective.
• Mortgages will usually be negotiated, so separate representation is required and advisable
CONCLUDE
• Immediately decline to act for both
WHERE THERE IS A OR
CONFLICT
• Continue to act for one with the other’s consent
Do not reveal the nature of the conflict without consent (Halifax Mortgages v Stepsky)
3
AND PRACTICE
, CONTENTS PAGE
ACTING FOR SELLER & BUYER 1
2-3
ACTING FOR BORROWER & LENDER
MONEY LAUNDERING REGULATIONS 2017 4
INSURANCE – FSMA 5
TAX (SDLT, VAT) 6-7
PLANNING PERMISSION – BUILDING WORKS 9-10
PLANNING PERMISSION – CHANGE OF USE 10 -11
PLANNING PERMISSION – LISTED BUILDING CONSENT 11
PLANNING PERMISSION – CONSERVATION AREA 12
ENVIRONMENTAL LAW 12
PLANNING PERMISSION ENFORCEMENT PERIOD 13
PROPERTY REGISTER 15
PROPRITORSHIP REGISTER 17
CHARGES REGISTER 20
PRE-CONTRACT SEARCHES + ENQUIRES 26
DRAFTING THE CONTRACT 31
PRE-EXCHANGE STEPS 34
PRE-COMPLETION STEPS 38
DRAFTING THE TR1 41
COMPLETION STEPS 43
POST COMPLETION STEPS 43
REMEDIES FOR DELAYES COMPLETION 45
LEASEHOLD PROCEDURE 50
GRANT OF A LEASE 53
GRANT OF AN ASSIGNMENT 54
GRANT OF AN UNDERLEASE 55
CONCERNS OF ALIENATION 56
FOUR L’S - ALIENTATION 58
ALIENATION LICENCES 59
ALTERATIONS 60
CHANGE OF USE 63
SECURITY OF TENURE 66
REPAIR PORVISIONS 74
INSURANCE/RENT SUSPENSION 76
RENT REVIEW 78
1
, CONDUCT, PRELIMINARY, PLANNING
PERMISSION
CONDUCT ACTING FOR SELLER & BUYER
• Principle 4: separate duties to act in the best interest of each client
• O3.5: cannot act where there is a client conflict (see conduct notes) or a significant risk
of a client conflict
GENERAL RULE § Apply to the facts; there is a conflict here because the buyer will want the lowest
price for the property and the seller will want to get the highest price for it
• There are two main exceptions
1. O3.3 identifies some relevant circumstances:
a) Clients have different interests (such as the best price)
WHETHER CONFLICT b) Whether the client is vulnerable or imbalance of bargaining powers
OF SIGNIFICANT RISK c) A need to negotiate between terms
OF ONE d) Solicitor’s ability to give independent advice will be fettered
2. The following will tend not to achieve O3.5 (therefore, conflict)
a) IB3.3: acting where matters of substance are being negotiated (such as price)
b) IB3.14: acting for the buyer and seller in a transfer of land for
value/grant/assignment of a lease
3. Consider whether buyer and seller are related or associated companies
• If so, may not be a conflict (check facts carefully)
• O3.6 states that you can act if there is a substantially common interest (see conduct
notes). This could apply where:
SUBSTANTIALLY § The property is being gifted, or
COMMON INTEREST § Purchase on developer’s standard terms (but watch out for imbalance of bargaining
power IB3.4)
• Generally not applicable as each party wants the best price for the transaction; IB3.11
O3.7 is never relevant (parties are not competing)
• Always apply it to the facts & consider whether a conflict could arise in the transaction
• Decision is ultimately the solicitor’s to make
CONCLUDE • Consider age of the seller/buyer, bargaining power, mental capacity, history of purchases,
undue influence
• Not many firms will act for both in commercial transactions
2
, ACTING FOR BORROWER & LENDER – CONFLICT OF INTEREST
GENERAL RULE Although a duty is owed to ‘act in the best interest of each client’ (SRA Principle 7) a solicitor
may act for both the borrower and the lender if they are ‘competing for the same
objective’(CCS 6.2.(a)) or that they ‘share a substantially common interest’(CCS 6.2(a)). A
solicitor may not act for both if there is a conflict of interest or a significant risk of one
arising (CCS 6.2).
WHETHER CONFLICT SRA glossary states that a conflict of interest is:
OF SIGNIFICANT RISK § ‘A situation where your separate duties to act in the best interest of two or more clients in
OF ONE the same or related matter conflict’
• E.G.: The terms of the mortgage are negotiable and the buyer wants a cheap and flexible
mortgage whereas the lender wants profitability and good security. This is an example of
conflict would occur.
•
SRA Glossary defines a ‘substantially common interest as ‘a situation where there is a clear
common purpose between the clients and a strong consensus on how it is to be achieved’
If the exception is established, then put in safeguards:
EXCEPTION 1
CCS 6.2:
SUBSTANTIALLY • All clients provide informed consent in writing
COMMON INTEREST • Establish safeguards to protect clients confidential information
• You are satisfied that it is reasonable for you to act for all the clients
•
EXCEPTION 2 SRA Glossary :
COMPTETING FOR THE This exception applies when two or more clients are competing for an "objective" which,
if attained by one client, will make that "objective" unattainable to the other client or
SAME OBJECTIVE
clients
This may be the case, for example, where two or more clients instruct you to act for them as
competing bidders and/or those involved with the funding of bidders in respect of the sale of a
business being sold through a structured auction process.
"Objective" may mean an asset, a contract or business opportunity which two or more
clients want to acquire or recover through a liquidation (or some other form of insolvency
process). It could also be by means of an auction or a tender process or a bid or an offer, but
not a public takeover.
Examples of where this exception might apply.
• Acting for more than one creditor on the insolvency of a company
• Acting for competing bidders for a business being sold by auction
• Acting for different tenderers tendering for the same contract
EXAM TIP: Students forget that you have to be competing against each other e.g.: whilst
a lender and a borrower have a similar objective here they are NOT COMPETING for the
same objective.
• Mortgages will usually be negotiated, so separate representation is required and advisable
CONCLUDE
• Immediately decline to act for both
WHERE THERE IS A OR
CONFLICT
• Continue to act for one with the other’s consent
Do not reveal the nature of the conflict without consent (Halifax Mortgages v Stepsky)
3
