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Notes on PLP Freehold for the (Accelerated) LPC at BPP University.
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Hafsah Nawaz
Freehold Exam Consolidation
TITLE INVESTIGATION
PCR POINT ON TITLE INVESTIGATION
A solicitor should advise his client of the risks of buying a property without full examination. Under
CCS 6.4, a solicitor’s client should be aware of all information material to the matter.
By fully reporting to the client in respect of this information (and solutions), the solicitor will achieve
CCS 8.6 which requires that clients are in a position to make informed decisions about the options
that are available to them.
Right of way
A right of way is necessary because the property does not abut a public highway. If the owners of
[PROPERTY] did not have the benefit of a right of way over [ROAD], or if the right was defective, the
property would run the risk of being landlocked.
CON 29 2.1(a) seeks to clarify whether the roads, footways and footpaths are public highways i.e.
roads maintainable by the local authority at the public’s expense. If [ROAD] is not included in this
reply, then that means that it is a private road.
Adequacy-
o Have a look at the Property Register for the terms of the right of way. Are these adequate for
the client? [CITE THE TERMS]
Means of access
Time of access
Physical conditions of the road
o Solution if adequate –
No further action required
o Solution if inadequate -
New easement
Deed of variation to vary the easement so that it becomes adequate
However, advise [BUYER] that this may be expensive as you’d have to pay
the owner of the burdened land for any such deed, as well as their legal
advice.
There is also no guarantee that the owner of the burdened land would
agree to a deed of variation on terms that are acceptable to [BUYER]
Therefore, if the need for a deed of variation is necessary, [BUYER] would
need to secure a binding commitment from the owner to grant any deed of
variation before [BUYER] exchanges contracts with [SELLER]
Maintenance-
o Check the Property Register for the terms of the right of way. Is there an express obligation
to contribute towards maintenance? Even in the absence of an express term, the common
law makes clear that if someone is taking the benefit of a right, then they have the obligation
to pay towards its upkeep too
o What is the amount of contribution?
Raise a query with the seller about how much historically has been paid, and ask for
records for the last 3 years
Check CPSE 3.2(f) to see if the seller has made any contributions. If this is answered
in the negative, then it may be appropriate to ask the seller to follow this up with
the owner of [ROAD] and ask how (if at all) the maintenance costs were split up
o Who else has the right to use the right of way?
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Check CPSE 3.2(c)
If no-one uses the right of way apart from the seller and the owner of the road, it is
likely that [BUYER] will be liable for most (if not all) of the maintenance costs
If someone else also uses the right of way, need further information on how the
cost of maintenance will be split up so as to be fair
o Check the condition of the road
Want to ensure that [BUYER]’s survey has checked the condition of the road, to
establish whether or not any maintenance is currently required
If it is in a poor state and works are required, [BUYER] will want to know its likely
contribution before committing to the purchase of [PROPERTY]. It may be
appropriate to ask the seller to cover these costs
Adoption-
o CON 29 2.1(b) -(d) seek to clarify whether any private road is due to be adopted by the local
authority and if so, who will be responsible for making up the private road to the standard of
public highway, and who, ultimately, will pay for such works
o Have to advise [BUYER] that privately owned roads or lanes can be adopted by the council
and made into public highways. This normally requires works to be carried out to improve
the quality of the road
o [BUYER] should be warned that the costs of such works can be very expensive and may be
borne by frontagers which would include [BUYER] once it has purchased [PROPERTY]
o Even if nothing in CON 29 2.1(c) states that there are no current plans by the council to
adopt, advise [BUYER] of the risk of being obliged to pay for the ‘making up’ costs just in case
the council resolves to adopt [ROAD] in the future.
Registration-
o Check SIMR- this will show the [PROPERTY] and also neighbouring properties
o As well as confirming that [PROPERTY] is registered, the SIMR reveals that the neighbouring
land is also registered.
o Then check Charges Register of the burdened land see if the burden of the right of way over
[ROAD] has been registered. If it has, then this is good for [BUYER] because it means that the
right of way is enforceable by [BUYER].
o If the burdened land was unregistered, you would need to check to see if a caution against
first registration had been entered against it and if not, you would need to ask the seller’s
solicitor to register a caution against first registration. The risk of not doing this is that the
burdened land later gets sold and the new owner may not be bound by the burden of the
easement.
Positive covenant + indemnity covenant
Is there a positive covenant?
o [CITE CHARGES REGISTER]
It is enforceable against [BUYER]?
o The burden of positive covenants doesn’t run with the land.
o Need to check if the Proprietorship Register shows that when the [SELLER] bought the land, it
entered into an indemnity covenant with its seller agreeing to comply with the positive
covenant
o [BUYER] will be expected to give a similar indemnity covenant to [SELLER] when it buys
[PROPERTY], so the [BUYER] is advised that it will have to observe the positive covenant. This
is the effect of SCPC 7.6.5
Has [SELLER] breached any positive covenants?
o Check CPSE 4.2(f) – state the breach, if any
o If dealing with a remediable past breach, [BUYER] will insist that the fence is put into good
repair, and you will put a special condition in the contract requiring the seller to do this.
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The alternative to the special condition is a price reduction which would cover the
costs the buyer is likely to incur in remedying the breach
However, if the [BUYER] is taking out a lean to purchase the property, then its
lender needs to be informed of any price reductions and may thus reduce the
amount it is willing to lend. As a result is often simpler to require the seller to
remedy the breach before completion
o If dealing with a non-remediable past breach, [BUYER] has the same options as would be for
a past breach of a restrictive covenants, aside from the fact that an application to the Upper
Tribunal Lands Chamber isn't available for breach of a positive covenant. Options are
therefore requesting (1) from the seller to obtain insurance (note, s19(1) FSMA restriction on
advising on insurance), or (2) getting retrospective permission from the PWB.
Restrictive covenant
Restrictive covenants run with the burdened land and will bind purchasers of land as long as they
‘touch and concern’ the land according to Tulk v Moxhay. The benefit of restrictive covenants also
attaches to the land and passes to whomever own the land at that time
[STATE WHAT THE RESTRICTIVE COVENANT SAYS]
Continuing breach-
o This is an issue because [BUYER] will be deemed responsible
o Check CPSE 4.2(f) – has the seller admitted to a breach of restrictive covenant? If so, then
you can infer that no consent was obtained from the PWB.
o Then check CPSE 5- has restrictive covenant insurance been obtained? If no, then this is a live
issue
o Solutions-
Insist that the seller buy restrictive covenant insurance at its expense, and you
would put a special condition in the contract binding the seller to do this before
completion, insuring that [BUYER] and any future buyer against the possibility of the
PWB bringing action in the future. The date of the breach and the date of the
covenant are important because the older the covenant and the older the breach,
the cheaper the insurance will be. Note- cannot advise on insurance pursuant to
s19(1) FSMA because it is a regulated activity
You should try insurance before option 2 because once the PWB has been contacted
it is highly unlikely that insurance would then be available because you have tipped
off the PWB
If insurance isn't available, then [BUYER] should ask seller for retrospective consent
from the PWB and put a special condition in the contract binding the seller to do
this before completion. However, the PWB may charge for this consent and there is
always the possibility that the PWB will refuse consent.
As a last resort, [BUYER] could ask the [SELLER] to apply to the Upper Tribunal Lands
Chamber to have the RC removed or varied. This is the last option because it is
impractical and time-consuming and expensive and no guarantee of success.
Past breach-
o Check CPSE 4.2(f) – has there been a past breach?
o If the breach will not continue once [BUYER] has bought [PROPERTY] then it is highly unlikely
that the PWB would be able to establish any loss for such a past non-continuing breach
o Nevertheless it would be prudent to check with the seller whether any complaints have been
made by the PWB. If so, the same options apply as above
Future breach-
o If the buyer plans to breach a covenant in the future, then the following options are open to
[BUYER]-
[BUYER] could buy restrictive covenant insurance insuring itself against the
possibility of the PWB bringing an action in the future. As this is a future breach,
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