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SGS 1 - set 2
Terms in this set (20)
What does it mean to deduce title?
This process is carried out seller solicitor who collates all the title documents, reads them through to ensure the seller owns the property and sends them to the buyer solicitor with a draft sale contract for the property.
What documents constitute the title documents for registered land?
- The official copies of the register (maintained by the land registry)
- Title plan
- Copies of any documents referred to in the official copies of the register where relevant extracts have not already been included.
In practice the buyer solicitor will print out a copy of the official copies of the register. This ensure that those printed and used to investigate title are very recent.
Is the deduction of title of the seller's solicitor and investigation of title by the buyer's solicitor carried out before the exchange of contracts?
What are the concerns of a buyer in the stage before purchasing the property?
- The buyer wants to make sure there are no defects in the title that could adversely affect the value of the property
- These can also affect the value of the property in the future
What are three types of registers found on the official copies?
- Property register
- Proprietorship register
- Charges register
What is the purpose of the property register?
Describes the property and rights benefitting the property (with reference to the title plan - this must be send to the buyer solicitor)
What is the purpose of the proprietorship register?
- Sets out the class of title
- The owner's name and address (registered proprietor)
- Sets out the entries affecting the owner's right of disposal
- Set out any indemnity covenant given by the proprietor
- Shows the price of the Property when it was last bought
What is the charges register?
This lists the charges burdening the property i.e. third party rights over the property (e.g. mortgages, positive covenants, restrictive covenants, leases or the burden of easements)
What is the main thing you are expected to do in the exam in relation to the three different types of register?
To read and understand each of the sections and work out whether or not any of the entries there cause issues for the buyer you are acting for.
What is the significance of the date and time the official copy of the register was printed? What is the importance of the edition date?
The buyer solicitor uses information to carry out a search before completion. This is to check with the Land registry that the register has not changes (no new issues) since the date the first official copies were issued. The search will be carried out from the date and time specified.
When investigating the rights that benefit the land, what register is referred to and do you need to request copies of the deed to this effect?
The property register
No - if the right has been extracted and all the relevant information is typed out in the land register
Yes - if the right has not been extracted and it is noted that the benefit is contained in a deed (file). This will need to be sent by the seller solicitor to the buyer solicitor (or requested from the land register in order for title to be deduced fully)
What are the key rights benefitting the land that can be included on the property register?
- Right of way
- Right to lay pipes for water and sewage
- Rights of light
- Excluded rights
- No rights
When investigating the property register, what are the key considerations if a right of way has been registered for the benefit of the land? (easement)
AMAR - If the property is set back from the highway, can the buyer use access freely and as necessary for its proposed plans for the property
- Adequacy - does the right of way exist and is it adequate for the client's purposes? I.e. is it on foot only?
- Maintenance - the buyer will have an obligation to contribute to towards the maintenance costs of any private owned road which it has a right of what over (under common law). Be aware that the owner of the burdened land may ask
The buyer solicitor should ask for the last three years of history of maintenance payments (but can ask for more if needed).
- Adoption - a local authority may have the right to call for private roads to be brought under control of the local authority. From this point on, the maintenance costs will be incurred by the LA and the road will be available for the public to use
The buyer should be aware that there is a considerable cost for putting the road into a suitable standard of repair prior to the adoption (adoptable standard). This is charged to the owner of the burdened land who may in turn ask the buyer to contribute
- Registration - the benefit of right is registered on the dominant land (benefitting land), but the buyer solicitor should check that this is also registered on the burdened land.
What search will reveal any plans for the road to be adopted?
CON 19 search/ CON29O
When investigating the registration of right of way, what should the buyer solicitor bear in mind if the land is registered?
- That the right of way is also registered over the servient land
- Check that this servient land is registered or unregistered land (this done by carrying out a SIM search - search of the index map
- If the land is registered, you would request a copy of the burdened land's to check that the right of way has been registered in the charges on that title.
- If it has not be registered properly, the buyer solicitor needs to make sure the seller gets the burden of the right of way registered in the burdened land's register before completion.
When investigating the property register, what are the key considerations in relation to a right to lay pipes for water and sewage?
As of 1 October 11, under the Water Industry (Schemes for adoption of private sewers) regulations 2011, ownership of private sewers that serve more than one property and lateral drains connected to the public sewerage system was transferred to the various statutory sewerage undertakers.
Any pipes and drain that are located within the property's boundaries and serving only that property remain the responsibility of the owner
When investigation the property register, what are the key considerations in relation to the rights of light?
There are two key ways to establish a right of light
1) An express grant by deed (rare in practice)
2) Acquired by prescription under the Prescription Act 1832 (PA 1832).
- The light must have been enjoyed without interruption for a period of at least 20 years from the date on which the action asserting the right was begun.
- There must be no presence of written consent
The remedy for disturbance is action for nuisance whereby the court may grant an injunction preventing the continued nuisance or prevent/award damages.
What is a right of light? Can it excluded?
An easement to enjoy the natural light that passes over someone else's land and then enters through a defined aperture in a building
Yes it can be expressly excluded. This is common in a sale of part where a seller may want to retain the ability to develop the land and therefore ensure the buyer does not get an express right to light
What is the consequence of the case 'Colls v Home and Colonial Stores Limited '?
If a right of light has been established, the owner of the dominant land (i.e. the land benefitting from the right of light), is entitled to an uninterrupted flow of sufficient light for the comfortable use and enjoyment of the building
In relation to section 20 Partnership Act 1890 state with regard to the land owned by partners for business purposes?
That land owned by partners in a partnership is held on trust for the partnership
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