#4908 - The Spa - Advanced Property Law and Practice

Complex Registered Title & Issues

ANALYSING A SCENARIO

Read through facts and look at map to identify possible issues
Possible issues:

	Facts/Issue	Why might it be a problem?	Solution
Man made	Current use of land e.g. works factory	Environmental contamination – Buyer may be liable for clean up costs – see Contamination of Land notes	Environmental Survey CON290 CON 29R Enquires of Seller – Commercial Property Standard Enquiries (CPSE)
	Electric Lines (straight dashed line on map) – also see entry on Property Register below	Restrict where you can build/to what height	Change layout of site/location of tall buildings Apply to have lines removed/go underground (expensive) Pay for owner to release benefit of right
	Residential area	Residents may be affected by building work noise (nuisance) Restrict times that building work can be done	Enquires of Seller (CPSE) Consult with residents
	Local roads	How are private roads maintained? Adoption?	CON29R Enquires of Seller (CPSE) Clause in contract and s38 agreement if needed
	Possible coal mining	Risk of subsidence	Coal mining search
	Old Building/ Home/House	Listed?	CON29R Local Land Charges Search (LLC1) Speak to English Heritage
	Footpath (dotted line on map)	Rights of way for ramblers May agitate ramblers/ if try to move it	Consult Move right of way around property
Natural features	Stream/River – also see entry on Property Register below	Risk of flooding? Who pays for maintenance of banks? Where is stream (may not be obvious from map)?	Apply to LR to get plan for location of stream Canals: enquiries with British Waterways Flooding search Riverbanks: enquiries with Environment Agency to check on responsibility for maintenance. Take account in site plan e.g. car parks not offices on likely flooding areas
Natural features	Marsh lands	Flooding	Take account in site plan e.g. car parks not offices on likely flooding areas
Historic uses	Factory/Agricultural land etc.	Environmental contamination – Buyer may be liable for clean up costs – Contamination of Land notes	Environmental Survey CON290 CON 29R Enquires of Seller (CPSE)
Transport Links	Main roads	All roads/public highways maintainable at public expense?	CON 29
	Railway	Who maintains railway banks? Environmental contamination? Access by maintenance people – how will they get there? Will it affect site plan?	Enquires of Seller (CPSE)
	Planned transport developments e.g. new tram system	Will compulsory purchase orders affect land?	Local Land Charges Search (LLC1)

INVESTIGATING TITLE

STEP 1: Check date of issue of the official copy – is it recent enough?

STEP 2: Check the names and addresses against sale contract.

STEP 3: Check PROPERTY REGISTER

Does the description of the property (including the title number) in Property Register, Plan and in Contract match?
Is the land Freehold/Leasehold as expected?
Check entries on PROPERTY REGISTER – do easements match client’s needs?

Entry	What it will look like	Why problem/ practical significance?	Action to take
Right to divert stream Right to construct ditch Indemnity for flood damage	“The Vendor so far as he lawfully can but not further or otherwise covenants and agrees that the Secretary of State may divert and turn the stream the present situation of which is shown on the said plan between the points marked “A” and “B” to a course marked “C” and “D” so that the stream may flow along….etc etc”	May have to maintain the stream? Risk of flooding? Who pays for maintenance of banks? Where is stream (may not be obvious from map)? Where is the ditch?	Apply to court if don’t want right Apply to LR to get plan for location of stream Canals: enquiries with British Waterways Flooding search Riverbanks: enquiries with Environment Agency to check on responsibility for maintenance. Take account in site plan e.g. car parks not offices on likely flooding areas
No right to easement of air/light etc	“Purchaser shall not become entitled to…any easement or right to air which would interfere or restrict free use of adjoining property”	Would interfere with the Buyer’s use and enjoyment of property in the future. Light is an issue for offices	Place buildings that don’t need light e.g. warehouses in that area Ask person with benefit if they have any plans to build CON29R
Easement of drainage with corresponding burden	“Together with the right for the purchaser to drain water and soil from the property subject to the payment of…”	Use of drains comes with a cost to maintenance Timescales	Need to find out from seller whether drainage grantage is adequate Ask Seller if there have been any problems/disputes with drainage plans Could just build new set of drains and be self sufficient. Might not want old drainage system

Right to divert stream

Right to construct ditch

Indemnity for flood damage

“The Vendor so far as he lawfully can but not further or otherwise covenants and agrees that the Secretary of State may divert and turn the stream the present situation of which is shown on the said plan between the points marked “A” and “B” to a course marked “C” and “D” so that the stream may flow along….etc etc”

May have to maintain the stream?

Risk of flooding?

Who pays for maintenance of banks?

Where is stream (may not be obvious from map)?

Where is the ditch?

Apply to court if don’t want right

Apply to LR to get plan for location of stream

Canals: enquiries with British Waterways

Flooding search

Riverbanks: enquiries with Environment Agency to check on responsibility for maintenance.

Take account in site plan e.g. car parks not offices on likely flooding areas

No right to easement of air/light etc

“Purchaser shall not become entitled to…any easement or right to air which would interfere or restrict free use of adjoining property”

Would interfere with the Buyer’s use and enjoyment of property in the future.

Light is an issue for offices

Place buildings that don’t need light e.g. warehouses in that area

Ask person with benefit if they have any plans to build

CON29R

Easement of drainage with corresponding burden

“Together with the right for the purchaser to drain water and soil from the property subject to the payment of…”

Use of drains comes with a cost to maintenance

Timescales

Need to find out from seller whether drainage grantage is adequate

Ask Seller if there have been any problems/disputes with drainage plans

Could just build new set of drains and be self sufficient.

Might not want old drainage system

STEP 4: Check PROPRIETORSHIP REGISTER

Entries to look out for:

Tenants in common
Indemnity covenant
Caution
Restriction on disposition

STEP 5: Check CHARGES REGISTER

Are the incumbrances the same ones specified in the contract?
Does the contract need to be altered?
Possible issues

Entry	What it will look like	Why problem/ practical significance?	Action to take
Right to maintain electric lines over property in return for promise to keep lines in good condition, indemnify for damage caused, give notice of maintenance	“The Vendor hereby grants unto the Board full right and liberty to place and maintain a double circuit overhead line for transmitting electricity…and from time to time repair…The Board hereby covenants with the Grantor as follows…”	Restrict where you can build/to what height	Change layout of site/location of tall buildings Apply to have lines removed/go underground (expensive) Pay for owner to release benefit of right
Restrictive covenant	Various – usually contained in a schedule	Explain on facts how it has interfered with buyer’s intended plans	Options available: Raise enquiries with Seller Negotiate for discharge with person who has benefit Indemnity insurance If qualified covenant ask for benefit holder’s consent Breach covenant Walk away from purchase Apply to Upper Tribunal under s84 LPS to grant modification or removal of covenant.
Lease	Contained in schedule	Property not vacant?	Title of lease in schedule – do a search on Land Register Who is tenant? Negotiate with them to leave Walk away from deal

Right to maintain electric lines over property in return for promise to keep lines in good condition, indemnify for damage caused, give notice of maintenance

“The Vendor hereby grants unto the Board full right and liberty to place and maintain a double circuit overhead line for transmitting electricity…and from time to time repair…The Board hereby covenants with the Grantor as follows…”

Restrict where you can build/to what height

Change layout of site/location of tall buildings

Apply to have lines removed/go underground (expensive)

Pay for owner to release benefit of right

Restrictive covenant

Various – usually contained in a schedule

Explain on facts how it has interfered with buyer’s intended plans

Options available:

Raise enquiries with Seller
Negotiate for discharge with person who has benefit
Indemnity insurance
If qualified covenant ask for benefit holder’s consent
Breach covenant
Walk away from purchase
Apply to Upper Tribunal under s84 LPS to grant modification or removal of covenant.

Lease

Contained in schedule

Property not vacant?

Title of lease in schedule – do a search on Land Register

Who is tenant? Negotiate with them to leave

Walk away from deal

Different Forms of Acquisition Contract

	What is it?	Situations to use	Advantages	Disadvantages
Conditional Agreement	Completion of contract only happens if specified condition has been fulfilled. NB contract still exists between parties but some terms only become operative on fulfilment of condition	Where Buyer is waiting for: a.) Planning permission b.) Results of local searches and enquiries c.) Vacant possession d.) Leasehold: Landlord consent for change of use, assignment or alteration	Buyer does not lose property if not in position to buy Advantageous to Buyer; No useful purpose for Seller	Buyer has to buy once condition satisfied even if not in position to buy
Call option	Buyer has the right (within a specified time) to require Seller to sell the property either at an agreed price, or at the market value at the time the option notice is served. Buyer gains an equitable interest in the land which must be protected by registration of a Class C(iv) land charge, in the case of unregistered land, or by a notice, in the case of registered land.	Buyer/Developer is attempting to piece together development site	Buyer can piece together development site/prospect of expanding development site in future Buyer can let option lapse if market conditions are no longer in his favour More advantageous than conditional agreement as Buyer only needs to use call option when financial arrangements are sorted, rather when condition e.g. Planning Permission is satisfied – more flexible option	Little benefit to seller (except consideration) as have no control over when buyer will exercise option to buy
Put option	Seller has the right (within a specified time) to require Buyer to sell the property either at an agreed price, or at the market value at the time the option notice is served. No obligation on the seller to sell.	a.) Planning Permission has yet to be applied for. b.) Varying economic conditions c.) Piecing together a development site d.) Prospect of expanding development site in future	Offer maximum flexibility to landowners More advantageous than conditional agreement as only needs to use call option when financial arrangements are sorted.	Little benefit to Buyer (except consideration) as have no control over when Seller will exercise option to buy
Pre-emption agreement	Obliges a seller who wishes to sell its property within an agreed pre-emption period to offer it first to the developer. Sometimes known as a right of ‘first refusal’	PTO	No obligation on seller to sell property at all PTO	Buyer may not ever get chance to buy property PTO
Overage payments	Contract which includes provisions for the possible payment by the buyer to seller of ‘overage’ i.e. extra consideration, should certain events/profit occur. ‘Positive overage’: buyer to make a further payment if a...

#4908 - The Spa - Advanced Property Law

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