Property Law & Practice Distinction Notes 2020-21

PLP Revision:

Pre-exchange
 Investigating official copies
Title investigation:
 What is the issue? E.g restrictive covenant/positive covenant
 Why is it an issue to the client? E.g whats happened in past/future plans?
 Resolve the issue E.g Insurance, ask PWB for consent, Upper Tribunal

Property register-describes the property and rights benefitting the property:
-Description of the property- freehold/leasehold and check extent of property is correct
-Easements benefitting property:
 Does the property abut a public highway? CON 29 to check that the adjoining road is
public and a Highways search to check it directly abuts the property if not then it is
essential a right of way is sufficient for client use as is only means of access

 Adequacy –can client access a property at all times, by all means it requires, free from any
restrictions or conditions and physically adequate in terms of size, location and
construction (if not adequate then may need deed of various of easement with owner of
burdened land which may come at cost)
 Maintenance- information contained in the CPSEs or if not given then would ask
questions to the seller with regards to maintenance payments (common to ask for
pervious 3 years)- as PWB will pay fair proportion of costs to repair and maintain and
surveyor to check no maintenance needed
 Adoption- CON 29 Q2- has it been adopted or not? If not then may be in the future by
council and made into public highway-might come at a cost to the client which can be
expensive as client may be borne by the frontages
 Registration- check whether right of way has been reg on the burdened land (if SIM
shows it reg land check the burden has been registered on the Charges register of Title
Number or if unreg land then check there is a caution against first registration over
burdened property and if not ask seller solicitor to register this)- if not registered then
include special condition within the contract requiring seller to do so
-Excluded Rights- someone else own something on land e.g fishing, mines, minerals

Proprietorship Register- gives the class of title, owners name and address and entries
affecting owners right of disposal:
-Class of Title- Title absolute?
-Name of registered proprietors- if individual co-owners revealed and one has died then
need to check if tenancy in common restriction- if so, need to ensure second trustee is
appointed in TR1- also check that name is correct by checking against HoT provided (if not
do CH search)
-Indemnity covenant- if present, buyer must also give indemnity to seller
-Restrictions e.g tenancy in common/lender

Charges Register-lists charges burdening property:
-Restrictive covenants ‘to not do X’:
 Any current or past breach by seller (but if stopping no problem if no complaints in
CPSEs)? RC run with the land and automatically binding as they ‘touch and concern
land’- Tulk v Moxhay

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,  Remedies
-Restrictive covenant insurance (the older the covenant/breach- more reasonable
the costs for insurance)- special condition in contract (must comply with s19 (1)
FSMA)
-Consent/release/modification by PWB (may be costly and discretionary-not before
investigating the feasibility of insurance)
-Upper Tribunal (no guarantee, time consuming and expensive)-
-Must consider insurance before approach PWB as cant get insurance if PWB notified
as the likelihood they may sue
 Future breach planned by buyer? – remedies same as above however insurance will
be more expensive

-Positive covenants- ‘to do X’:
 Is there an indemnity covenant in the proprietorship register? If so, the covenant will
bind the buyer- SCPC 7.6.5 requires a buyer givens an indemnity covenant in the
transfer but if there is not then they are not binding as they do not run with the land
 Current breach by seller?
 Remedies: require seller to remedy breach/reduce price, if breach is irremediable,
possibility of insurance and release from PWB
 Future breach by buyer? Advise of possibility of enforcement/investigate insurance
(at buyers expense)/release from PWB

-Mortgages:
 Seller’s solicitor undertaking in respect of any outstanding charges on the property
which need to be discharged as follows:
-To remit the funds required to redeem the charge to the lender once received
from the buyer’s solicitors; and
-To forward evidence of the discharge to the buyer’s solicitor once it is
received from the lender in the form of DS1 (for unreg land- evidence of
discharge is receipted mortgage)

 Searches and investigations

Always carry out:
-Inspection/survey (done by buyer/their surveyor)-physical inspection of property and
ensure a full structural survey taken because of ‘caveat emptor’ (buyer beware)
-Pre-Contract Enquires of Seller (CPSEs)-
-Local authority search: Local Land Charges Search (LLC1) and Local Authority Enquiries
(Con 29)
-Commercial Drainage and Water Search
-Environmental desktop search e.g Homecheck- assess risk of being an environmental issue
and risk of flooding
-Chancel repair
-Index Map Search (SIM)- check whether properties are reg/unreg
-Highways search- check property abuts public highway and identify boundary between
public highway and private land

Other searches that may be appropriate:
-Local Authority search optional enquires (CON29O)

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, -Mining (CON29M)
-Company House- seller/buyer (additional if acting for lender)
-Waterways/Environment Agency
-Full environmental survey (follow up to desktop- phase 1/phase 2)

Planning:
-Has seller carried out WORKS or ALTERATIONS? Or, are there proposed alterations by the
buyer?
 Is planning permission required?
-Planning permission required for ‘development’- s57 (1) TCPA 1990
-Are these building works as included in the definition of ‘development’ in s55
(1)/s55 (2) (a) TCPA?
-Are the works covered by GDPO? Or is application needed for PP?
-Is the area in Conservation? If so, was GDPO disapplied?
 Building regulations approval needed? Buildings Regularisation Certificate?
 Listed Buildings consent needed?
-Has seller changed use? Or, is the buyer proposing to change use?
 Is planning permission required?
-Planning permission required for ‘development’- s57 (1) TCPA 1990
-Is this a ‘material change of use’ (change of use from one class to a different one) as
included within the definition of development at s55 (1) TCPA?
-If change of use is within same use class no PP needed-s55 (2) (f) TCPA/Art 3 (1)
TCP (UC) O 1987
-If change from one class to another, is changed covered by GDPO? If not, application
for PP is needed

-Local Land Charges Search (LLC1):
 Past building works and changes of use (with or without PP) need to check to see if
enforcement periods have expired
If buyer may be liable, check when works carried out and see if time to bring
enforcement has expired:

-Building works without PP= 4 years from substantial completion
-Breach of condition in PP= 10 years from date of breach
-Material change of use (unless change is to single dwelling house which is 4 years from
date of change)= 10 years from date of change
-Building regulations= no time limit for enforcement (because of unlimited time a
solicitor can be held negligent for not checking whether the seller actually obtained
building regulations approval-Cottingham)
-Building consent= no time limit for enforcement
 Look at for granted PP
 Conservation Area- has GDPO been disapplied by an Article 4 Direction?
 Listed Building-may disapply parts of GDPO e.g fence in Class A Part 2 Sch 2
 BUILDING REGULATIONS NOT COVERED in LLC1

-CON29:
 PP and Building Regulations- reveals whether refused/granted (subject to
conditions)- must see full copies of each permission before exchange of contracts to
check whether conditions imposed as enforcement period

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