Property Law and Practice
Table of Contents
Investigation of a registered and unregistered freehold title:....................................................................1
Pre-contract searches and enquiries:........................................................................................................4
Finance:....................................................................................................................................................5
Acting for a lender:...................................................................................................................................6
Preparation for and exchange of contracts:..............................................................................................7
Pre-completion:........................................................................................................................................9
Completion and post-completion:...........................................................................................................11
Remedies for delayed completion:..........................................................................................................12
Structure and content of a lease:............................................................................................................12
Procedural steps for the grant of a lease or underlease:..........................................................................15
Procedural steps for the assignment of a lease:......................................................................................16
Licence to assign and licence to underlet:................................................................................................17
Leasehold covenants:..............................................................................................................................17
Remedies for breach of a leasehold covenant:........................................................................................18
Termination of a lease:...........................................................................................................................19
Security of tenure under a business lease:...............................................................................................19
Core principles of planning law in England and Wales.............................................................................20
Stamp Duty Land Tax in England and Land Transaction Tax in Wales:......................................................22
Value Added Tax:....................................................................................................................................23
Capital Gains Tax:...................................................................................................................................23
Core knowledge areas of freehold real estate law
and practice
Investigation of a registered and unregistered freehold title:
Key elements and structure of freehold property transactions
3. Pre-exchange
a. Buyer decides to buy property and price is agreed
b. Surveyor surveys property and reports on its value and condition
c. Buyer’s solicitor investigates and reports on title
d. When buyer is satisfied with a-c, proceed to exchange
4. Exchange
a. Seller and buyer enter contract to sell/buy the property on the completion date
b. Buyer pays a deposit (usually 10% of agreed price)
c. Neither can pull out without financial consequences after this point
5. Pre-completion
a. Buyer’s solicitor orders mortgage funds and ensures they have full money from client in time
for completion date
, b. (Residential only) seller and buyer book removal van for completion date if appropriate
c. Seller ensures they have all necessary paperwork to transfer the property on completion
6. Completion
a. Buyer’s solicitor sends purchase price to seller’s solicitor
b. Seller’s solicitor agrees to send necessary paperwork to transfer the property to the buyer’s
solicitor
c. Buyer gets the keys
d. (Residential only) Buyer and seller physically move house
7. Post completion
a. Seller’s solicitor pays off seller’s mortgage and pays balance to seller
b. Buyer’s solicitor pays SDLT/LTT and registers buyer as the new owner at HMLR
Process of analysing Land Registry official copy entries
- Register includes:
o Header (title number etc.)
o Property register
Postal address and title plan
Specifics of legal estate or details of lease (if leasehold)
Any rights benefitting the property as notices
o Proprietorship register
Class of title
Holder(s) of legal estate
Any restrictions affecting title
o Charges register
Any rights burdening the property as notices
Process of analysing an epitome of title and deducing ownership
- Seller’s solicitor identifies which historical deeds are relevant and lists them in the epitome of title
- Copies of the listed documents are provided to the buyer’s solicitor
o Seller’s solicitor undertakes to provide the originals to the buyer’s solicitor on completion
- Most important document is the Root of Title which must meet 4 requirements:
o Dated more than 15 years ago
o Deals with both legal and beneficial title to the property
o Adequately describes the extend of the land being conveyed
o Does not cast doubt on the seller’s title
- Seller’s solicitor:
o Identifies the root of title
o Establishes a chain of title from that deed to the seller
- Other documents to be included in epitome of title:
o Power of attorney under which the root of title or any deed in the chain has been executed
o A death certificate if property has passed by survivorship, or grant of representation and an assent
if property has passed under will or intestacy
o Any mortgage created after the root of title, even if discharged
- Legal mortgages or sale conveyances are preferable as a root of title
Issues that could arise from an investigation of title and further action required
Registered Land
Co-ownership
- Trust of land exists
- If expressly created, declaration of trust panel informs HMLR how co-owners wish to hold beneficial
title
, - Legal title is always held at joint tenants, beneficial title can be held as joint tenants or tenants in
common
- If co-owners have notified HMLR that they hold as beneficial tenants in common, HMLR will add a
restriction to the proprietorship register
o If this exists and there is only one co-owner selling the property:
a second trustee must be appointed to receive the sale monies, and
purchase price must be paid in good faith
Rights of Way (Property register)
- If property has benefit of a right of way, there are 4 issues to be considered:
o Registration of the burden
o Adequacy
o Maintenance
o Adoption
Covenants (Charges register)
- Covenants on the charges register may be restrictive, positive or unknown
- Restrictive covenants on the charges register are binding on the property
- Positive covenants on the charges register are binding only if there is a chain of indemnity
o Indemnity covenants appear in Proprietorship register
- Unknown covenants should be assumed to be restrictive and bind the property, but further
investigation will need to be carried out
Unregistered Land
Co-Ownership
- If seller is a surviving co-owner, it is necessary to identify whether the seller has obtained the full
beneficial title by co-ownership or is a surviving beneficial tenant in common
- It can be assumed that a surviving co-owner was a beneficial joint tenant if:
o Conveyance from the seller to the buyer states the seller is beneficially entitled to the whole of the
property
o There is no memorandum of severance, and
o There is no bankruptcy order to bankruptcy petition registered against the seller
- If the above conditions are not met, the seller should be treated as a surviving tenant in common
Land Charges
- Some rights burdening the property will only bend registered land if they are registered at the Land
Charges Department
- Land charge classes:
o Puisne mortgage (c(i))
o Estate contract (c(iv))
o Restrictive covenant (d(ii))
o Equitable easement (d(iii))
o Home right (F)
- Search is by years of ownership and full name, carried out against each owner of the land in the chain
of title
- If the beginning of ownership is unknown or predates 1926, the period of search begins with 1926
Mortgages
- Mortgage deed should be listed on the epitome of title
o If mortgage has been discharged, there should be a vacating receipt
Table of Contents
Investigation of a registered and unregistered freehold title:....................................................................1
Pre-contract searches and enquiries:........................................................................................................4
Finance:....................................................................................................................................................5
Acting for a lender:...................................................................................................................................6
Preparation for and exchange of contracts:..............................................................................................7
Pre-completion:........................................................................................................................................9
Completion and post-completion:...........................................................................................................11
Remedies for delayed completion:..........................................................................................................12
Structure and content of a lease:............................................................................................................12
Procedural steps for the grant of a lease or underlease:..........................................................................15
Procedural steps for the assignment of a lease:......................................................................................16
Licence to assign and licence to underlet:................................................................................................17
Leasehold covenants:..............................................................................................................................17
Remedies for breach of a leasehold covenant:........................................................................................18
Termination of a lease:...........................................................................................................................19
Security of tenure under a business lease:...............................................................................................19
Core principles of planning law in England and Wales.............................................................................20
Stamp Duty Land Tax in England and Land Transaction Tax in Wales:......................................................22
Value Added Tax:....................................................................................................................................23
Capital Gains Tax:...................................................................................................................................23
Core knowledge areas of freehold real estate law
and practice
Investigation of a registered and unregistered freehold title:
Key elements and structure of freehold property transactions
3. Pre-exchange
a. Buyer decides to buy property and price is agreed
b. Surveyor surveys property and reports on its value and condition
c. Buyer’s solicitor investigates and reports on title
d. When buyer is satisfied with a-c, proceed to exchange
4. Exchange
a. Seller and buyer enter contract to sell/buy the property on the completion date
b. Buyer pays a deposit (usually 10% of agreed price)
c. Neither can pull out without financial consequences after this point
5. Pre-completion
a. Buyer’s solicitor orders mortgage funds and ensures they have full money from client in time
for completion date
, b. (Residential only) seller and buyer book removal van for completion date if appropriate
c. Seller ensures they have all necessary paperwork to transfer the property on completion
6. Completion
a. Buyer’s solicitor sends purchase price to seller’s solicitor
b. Seller’s solicitor agrees to send necessary paperwork to transfer the property to the buyer’s
solicitor
c. Buyer gets the keys
d. (Residential only) Buyer and seller physically move house
7. Post completion
a. Seller’s solicitor pays off seller’s mortgage and pays balance to seller
b. Buyer’s solicitor pays SDLT/LTT and registers buyer as the new owner at HMLR
Process of analysing Land Registry official copy entries
- Register includes:
o Header (title number etc.)
o Property register
Postal address and title plan
Specifics of legal estate or details of lease (if leasehold)
Any rights benefitting the property as notices
o Proprietorship register
Class of title
Holder(s) of legal estate
Any restrictions affecting title
o Charges register
Any rights burdening the property as notices
Process of analysing an epitome of title and deducing ownership
- Seller’s solicitor identifies which historical deeds are relevant and lists them in the epitome of title
- Copies of the listed documents are provided to the buyer’s solicitor
o Seller’s solicitor undertakes to provide the originals to the buyer’s solicitor on completion
- Most important document is the Root of Title which must meet 4 requirements:
o Dated more than 15 years ago
o Deals with both legal and beneficial title to the property
o Adequately describes the extend of the land being conveyed
o Does not cast doubt on the seller’s title
- Seller’s solicitor:
o Identifies the root of title
o Establishes a chain of title from that deed to the seller
- Other documents to be included in epitome of title:
o Power of attorney under which the root of title or any deed in the chain has been executed
o A death certificate if property has passed by survivorship, or grant of representation and an assent
if property has passed under will or intestacy
o Any mortgage created after the root of title, even if discharged
- Legal mortgages or sale conveyances are preferable as a root of title
Issues that could arise from an investigation of title and further action required
Registered Land
Co-ownership
- Trust of land exists
- If expressly created, declaration of trust panel informs HMLR how co-owners wish to hold beneficial
title
, - Legal title is always held at joint tenants, beneficial title can be held as joint tenants or tenants in
common
- If co-owners have notified HMLR that they hold as beneficial tenants in common, HMLR will add a
restriction to the proprietorship register
o If this exists and there is only one co-owner selling the property:
a second trustee must be appointed to receive the sale monies, and
purchase price must be paid in good faith
Rights of Way (Property register)
- If property has benefit of a right of way, there are 4 issues to be considered:
o Registration of the burden
o Adequacy
o Maintenance
o Adoption
Covenants (Charges register)
- Covenants on the charges register may be restrictive, positive or unknown
- Restrictive covenants on the charges register are binding on the property
- Positive covenants on the charges register are binding only if there is a chain of indemnity
o Indemnity covenants appear in Proprietorship register
- Unknown covenants should be assumed to be restrictive and bind the property, but further
investigation will need to be carried out
Unregistered Land
Co-Ownership
- If seller is a surviving co-owner, it is necessary to identify whether the seller has obtained the full
beneficial title by co-ownership or is a surviving beneficial tenant in common
- It can be assumed that a surviving co-owner was a beneficial joint tenant if:
o Conveyance from the seller to the buyer states the seller is beneficially entitled to the whole of the
property
o There is no memorandum of severance, and
o There is no bankruptcy order to bankruptcy petition registered against the seller
- If the above conditions are not met, the seller should be treated as a surviving tenant in common
Land Charges
- Some rights burdening the property will only bend registered land if they are registered at the Land
Charges Department
- Land charge classes:
o Puisne mortgage (c(i))
o Estate contract (c(iv))
o Restrictive covenant (d(ii))
o Equitable easement (d(iii))
o Home right (F)
- Search is by years of ownership and full name, carried out against each owner of the land in the chain
of title
- If the beginning of ownership is unknown or predates 1926, the period of search begins with 1926
Mortgages
- Mortgage deed should be listed on the epitome of title
o If mortgage has been discharged, there should be a vacating receipt
