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Title And Development Issues Notes

LPC Law Notes > Advanced Commercial Property Notes

This is an extract of our Title And Development Issues document, which we sell as part of our Advanced Commercial Property Notes collection written by the top tier of Cambridge And Oxilp And College Of Law students.

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1 - ACQUISITION - TITLE AND DEVELOPMENT ISSUES TITLE ISSUES Restrictive Covenants
? Past breaches - Permission for breach? If not, does Seller have restrictive covenant insurance? If not, make a condition of the contract to obtain prior to completion.
? Future breaches - buyer should consider obtaining restrictive covenant insurance -but could be expensive - Or approach PWB (person with benefit of covenant) for consent. Positive Covenants
? Positive Covenants do not automatically bind the land. However, an entry in the Proprietorship Register will notify successive owners of the covenant(s). By virtue of SCPC 6.4.4, it is likely that the buyer be required to enter into a similar indemnity covenant to observe and perform the covenant(s). ADVICE - buyer likely to be bound. Rights burdening the land
? Reserving a benefit over the land - ACTION/ ADVICE - Find out who owns the land and negotiate a deed of release.
? Third Party rights over the land - ACTION/ ADVICE - Find out who has the benefit of this right? Has it been exercised? Consider approaching for release of rights - time/ cost implications. Charges/ other
? Lease - Do security of tenure provisions apply to the land ADVICE - tenant may have a right to remain in tenure / apply for new lease - ACTION - serve a s.25 notice, citing grounds of opposition - development s.30(1)(f) LTA 1954 - non-fault ground - compensation will be payable to the lessee s.37(1C) LTA 1954 .
? Pre-emption agreement - Implications for seller - it if is still in force, the seller must offer the land to another party first - ADVICE/ ACTION - Request copy of agreement/ confirm it is no longer enforceable and ensure that the seller removes notice of it from the register.
? Mortgage - ADVICE/ ACTION - Obtain confirmation from the seller's solicitors that this will be discharged on completion. DEVELOPMENT ISSUES Rights to light
??????Can be granted expressly (deed), OR by prescription.
??????Prescription - Right obtained following 20 years of continuous use - Can be prevented by interrupting the flow of light. ACTION - Developer should serve LON (Light Obstruction Notice) and register as a land charge - The LON must remain in place for one full year to prevent the right arising. Once right has been acquired, the owner of the right may object to service LON. In these circumstances it should still be serve a LON - the owner may not object
- If the LON is left in place for a year, the right will be extinguished.
? Developer should deal with any outstanding light issues prior to commencing development works - Case law - the court may grant an injunction to have the building Regan v Paul Properties. However, recent case law - court may adopt a more discretionary approach - awarding damages to the injured party (based on loss of amenity/ diminution in value of property) Coventry v Lawrence (2014) - unless developer has acted underhand.

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