SGS1 – INITIAL SEARCHS / ENQUIRES / TITLES (3¼)
EXAM APPROACH
State issue
Explain why it’s an issue for client (referring to instructions)
Possible solutions
Which is best
PROPERTY REGISTER (Checks)
1) Freehold / Leasehold
2) Description by reference to title plan
3) Easements / rights BENEFITTING the property (e.g. rights of way / drainage) AMAR
i. ADEQUACY (e.g. easement / drainage) – is it FIT FOR PURPOSE?
Can right of way be accessed on foot only or with vehicles?
Does easement run from the property to public highway?
Do foul / surface water system drain to public sewerage systems?
If NOT adequate = ask burdened land owner to vary by Deed of Variation – outcomes:
o Money
o Decline
ii. MAINTENANCE (Check CPSEs)
Who is liable for maintenance of burdened land
Check title – if not specified in the title then Common Law liability to contribute to maintenance
Does SELLER have existing obligation to contribute to cost of repairs and / or maintenance?
How much is this? Advise BUYER that may need to contribute in future (any previous contributions in
the past 3 years)
iii. ADOPTION
BUYER must be advised of potential costs of ‘adoption’ of roadways by governing organisation (e.g.
local authorities have right to call for private roads to be brought under local authority control
BUYER should be advised of considerable cost of putting road into a suitable standard of repair prior
to adoption – paid for by owners of properties which abut the road
o Is the road a public / private road? (Y/N)
o If PUBLIC, are there any plans to adopt? (Y/N) – Check CON29R
o Must warn client that may need to contribute to repair
iv. REGISTRATION
Has the burden been properly registered?
Check CHARGES REGISTER with reference to title number
o Find title number by SIM search / SIMR (result)
If not registered = file caution against first registration with land registry
4) Description of land in Property Register matches HoT / Contract
5) Exclusions from the land – will these affect client’s intended use?
PROPRIETORSHIP REGISTER (Checks)
1) Class of Title
s9(2) LRA 2002: check title is ABSOLUTE
IF Non-absolute – check circumstances in which (BUYER / lender) might accept lesser title
2) Who is registered proprietor?
Is SELLER in HoT / Contract the registered proprietor – if NOT, who is?
a) Individual
, b) Company – check details on Companies House
c) Personal representative of deceased (e.g. administering estate)
o LR require Official Grant of Representation to confirm status so should request from PR
o Payment of funds to sole PR with overreach all beneficial interests
d) Attorney acting under PoA
o Person authorised by another to act of their behalf
o Requirements:
3) Has PoA been validly granted under s1(1) PoA 1971?
4) Has PoA been revoked?
5) Has original PoA been provided?
o s5(4) PoA 1971: presumption of validity if <12 months ago
o Evidence required by LR:
6) Official copy of PoA; and
7) Statutory declaration of non-revocation executed by buyer IF PoA is >12 months
a) Mortgagee exercising Power of Sale (PoS)
o s101 LPA 1925: Grants PoS to every lender providing mortgage made by deed
o s85 LPA 1925: all legal mortgages must be by DEED
o PoS arises at legal date of redemption – 6 months from date of mortgage deed
o s103 LPA 1925: PoS becomes exercisable where:
8) Notice requiring payment of mortgage money is served on borrower
9) Interest under the mortgage is in arrear / unpaid for two months
10) Breach of some sort of provision of mortgage deed
a) Joint Owners (up to four) who may have beneficial interest either as JTs or TICs
Tenants in Common (TICs)
o Restriction in proprietorship register = TICs (not JTs)
o Deceased’s legal interest in property passes to co-owner but beneficial interest does NOT
(normally passes according to terms of their will)
o Deceased’s beneficial interest needs to be overreached by appointment of second trustee and
payment of purchase funds to both trustees
o Both surviving TIC + second trustee need to execute contract + purchase deed
o Evidence required by LR:
11) Official copy of death certificate; and
12) Deed of Appointment of second trustee (whose name appears on purchase deed along with surviving TIC)
Joint Tenants (JTs)
o Deceased’s legal + beneficial interest pass automatically through doctrine of ‘survivorship’ SO
sole surviving JT can execute contract + purchase deed alone
o Evidence required by LR:
13) Official copy of death certificate of deceased JT
14) Any Indemnity covenants (NB relevant for positive covenants in Charges Register)
CHARGES REGISER (Checks)
1) Any easements burdening the property – how will they affect intended use?
2) Any restrictive covenants?
Have they been / will they be breached – will this affect buyer?
3) Any positive covenants?
PCs generally NOT binding BUT indemnity covenants are (check proprietorship register)
o Chain of covenants – pass on indemnity covenants to BUYERS so that it passes with title
Will buyer be bound?
, 4) Any mortgages over the property? Will they be discharged?
Form DS1 = Discharge mortgage (separate form for each mortgage)
Form DS3 = Part Sale
5) Any leases over the property? Is purchase subject to leases?
PAST breach of RC
Tulk v Moxhay: RCs run with (attach to) the land – BUYER is liable for previous breaches:
Solutions:
o OLD Covenant (>50 years) – purchase RC insurance (at seller’s expense)
Must not contact Person with Benefit (PWB) as it may alert them to breach and eliminate
possibility of getting insurance
o RECENT Covenant (< 50 years) – insurers advise buyer to request consent from PWB to release
liability
FUTURE breach of RC
Same as above except BUYER would be expected to cover costs
If breach is fundamental to intended use – consider conditional contract if seller agrees
PAST breach of PC
PCs DO NOT run with (attach to) the land – BUYER not liable for previous breaches UNLESS seller gave an
indemnity covenant as seller will expect buyer to give same PC
Lands Tribunal unavailable
FUTURE breach of PC
Same as above + additional option
o IF breach is fundamental to buyer’s intended use = consider conditional contract (if seller agrees)
EXAM APPROACH
State issue
Explain why it’s an issue for client (referring to instructions)
Possible solutions
Which is best
PROPERTY REGISTER (Checks)
1) Freehold / Leasehold
2) Description by reference to title plan
3) Easements / rights BENEFITTING the property (e.g. rights of way / drainage) AMAR
i. ADEQUACY (e.g. easement / drainage) – is it FIT FOR PURPOSE?
Can right of way be accessed on foot only or with vehicles?
Does easement run from the property to public highway?
Do foul / surface water system drain to public sewerage systems?
If NOT adequate = ask burdened land owner to vary by Deed of Variation – outcomes:
o Money
o Decline
ii. MAINTENANCE (Check CPSEs)
Who is liable for maintenance of burdened land
Check title – if not specified in the title then Common Law liability to contribute to maintenance
Does SELLER have existing obligation to contribute to cost of repairs and / or maintenance?
How much is this? Advise BUYER that may need to contribute in future (any previous contributions in
the past 3 years)
iii. ADOPTION
BUYER must be advised of potential costs of ‘adoption’ of roadways by governing organisation (e.g.
local authorities have right to call for private roads to be brought under local authority control
BUYER should be advised of considerable cost of putting road into a suitable standard of repair prior
to adoption – paid for by owners of properties which abut the road
o Is the road a public / private road? (Y/N)
o If PUBLIC, are there any plans to adopt? (Y/N) – Check CON29R
o Must warn client that may need to contribute to repair
iv. REGISTRATION
Has the burden been properly registered?
Check CHARGES REGISTER with reference to title number
o Find title number by SIM search / SIMR (result)
If not registered = file caution against first registration with land registry
4) Description of land in Property Register matches HoT / Contract
5) Exclusions from the land – will these affect client’s intended use?
PROPRIETORSHIP REGISTER (Checks)
1) Class of Title
s9(2) LRA 2002: check title is ABSOLUTE
IF Non-absolute – check circumstances in which (BUYER / lender) might accept lesser title
2) Who is registered proprietor?
Is SELLER in HoT / Contract the registered proprietor – if NOT, who is?
a) Individual
, b) Company – check details on Companies House
c) Personal representative of deceased (e.g. administering estate)
o LR require Official Grant of Representation to confirm status so should request from PR
o Payment of funds to sole PR with overreach all beneficial interests
d) Attorney acting under PoA
o Person authorised by another to act of their behalf
o Requirements:
3) Has PoA been validly granted under s1(1) PoA 1971?
4) Has PoA been revoked?
5) Has original PoA been provided?
o s5(4) PoA 1971: presumption of validity if <12 months ago
o Evidence required by LR:
6) Official copy of PoA; and
7) Statutory declaration of non-revocation executed by buyer IF PoA is >12 months
a) Mortgagee exercising Power of Sale (PoS)
o s101 LPA 1925: Grants PoS to every lender providing mortgage made by deed
o s85 LPA 1925: all legal mortgages must be by DEED
o PoS arises at legal date of redemption – 6 months from date of mortgage deed
o s103 LPA 1925: PoS becomes exercisable where:
8) Notice requiring payment of mortgage money is served on borrower
9) Interest under the mortgage is in arrear / unpaid for two months
10) Breach of some sort of provision of mortgage deed
a) Joint Owners (up to four) who may have beneficial interest either as JTs or TICs
Tenants in Common (TICs)
o Restriction in proprietorship register = TICs (not JTs)
o Deceased’s legal interest in property passes to co-owner but beneficial interest does NOT
(normally passes according to terms of their will)
o Deceased’s beneficial interest needs to be overreached by appointment of second trustee and
payment of purchase funds to both trustees
o Both surviving TIC + second trustee need to execute contract + purchase deed
o Evidence required by LR:
11) Official copy of death certificate; and
12) Deed of Appointment of second trustee (whose name appears on purchase deed along with surviving TIC)
Joint Tenants (JTs)
o Deceased’s legal + beneficial interest pass automatically through doctrine of ‘survivorship’ SO
sole surviving JT can execute contract + purchase deed alone
o Evidence required by LR:
13) Official copy of death certificate of deceased JT
14) Any Indemnity covenants (NB relevant for positive covenants in Charges Register)
CHARGES REGISER (Checks)
1) Any easements burdening the property – how will they affect intended use?
2) Any restrictive covenants?
Have they been / will they be breached – will this affect buyer?
3) Any positive covenants?
PCs generally NOT binding BUT indemnity covenants are (check proprietorship register)
o Chain of covenants – pass on indemnity covenants to BUYERS so that it passes with title
Will buyer be bound?
, 4) Any mortgages over the property? Will they be discharged?
Form DS1 = Discharge mortgage (separate form for each mortgage)
Form DS3 = Part Sale
5) Any leases over the property? Is purchase subject to leases?
PAST breach of RC
Tulk v Moxhay: RCs run with (attach to) the land – BUYER is liable for previous breaches:
Solutions:
o OLD Covenant (>50 years) – purchase RC insurance (at seller’s expense)
Must not contact Person with Benefit (PWB) as it may alert them to breach and eliminate
possibility of getting insurance
o RECENT Covenant (< 50 years) – insurers advise buyer to request consent from PWB to release
liability
FUTURE breach of RC
Same as above except BUYER would be expected to cover costs
If breach is fundamental to intended use – consider conditional contract if seller agrees
PAST breach of PC
PCs DO NOT run with (attach to) the land – BUYER not liable for previous breaches UNLESS seller gave an
indemnity covenant as seller will expect buyer to give same PC
Lands Tribunal unavailable
FUTURE breach of PC
Same as above + additional option
o IF breach is fundamental to buyer’s intended use = consider conditional contract (if seller agrees)
