A more recent version of these Sale Of Part notes – written by Cambridge And Oxilp And College Of Law students – is available here.
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Work Shop 7 Sale of Part
Sale of Part What Easements, Covenants etc. are necessary for the Client?
The Contract provides for the termDefine all the terms accuratelyRed for the "Property"Blue for the "Retained Land"Easements and covenants are included by: o Special condition o By reference to the attached Transfer?
Implied Easements on Sale of Part in favour of buyer 1,2,3
The Transfer imposes the term Use Form TP01 In Box 12, new easements and covenants can be created as needed
Where the original land is subject to a mortgage and seller wants to dispose of part He must obtain lender's consent in Form DS3 and a certificate of noncrystallisation if there's also a floating charge Lender may want all or some of the proceeds to go towards discharging the mortgage Buyer will want an undertaking from the seller to discharge the mortgage
1. NecessityEasements to buyer and sellerIf without it no use can be made of the land
2. Common IntentionEasements to buyer and sellerWhere the parties would have thought of it during sale
3. s.62 LPA 1925Easements to buyer onlyMust be diversity of occupation at the time of the conveyanceIt creates a new easement by implying words into conveyance to ensure that everything enjoyed with the land passes to the buyer on saleSo, a licence to cross a field will become an easement on sale of part
4. Wheeldon v BurrowsEasements to buyer onlyIt will be implied where the right us i. Continuous and apparent (e.g. a path, a drain, easily spottable); and ii. Necessary for the reasonable enjoyment of the land; and iii. Was being used as a "quasi-easement" by the seller for the benefit of the Part being sold at the time of the conveyance
Expressly Excluding Implied EasementsExclude all: "The Transfer Deed will contain a declaration that it will only operate to grant those easements expressly referred to and will not operate or be construed to imply the grant of other easements" p410Exclude easements of light and air: "There is not included in the sale of part any easement of light and air which would or might interfere with or restrict the free use of the Retained Land for building or any other purpose. The Transfer to the Buyer must expressly exclude those rights" [note: SCPC 3.3 excludes implied light and air easements] p411 Consider granting or reserving specific easements for: 1
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